T-30/92

defendant,

APPLICATION for the annulment of the decision of the President of the Court of Justice of 28 June 1991 appointing the applicant as an administrator in so far as it classifies him in Grade A 7 and not in Grade A 6,

T H E COURT O F FIRST INSTANCE O F T H E E U R O P E A N COMMUNITIES (Fifth Chamber),

composed of: D. P. M. Barrington, President, K. Lenaerts and A. Kalogeropoulos, Judges,

Registrar: B. Pastor, Administrator,

having regard to the written procedure and further to the hearing on 15 December 1992,

1 The applicant, Ulrich Klinke, entered the service of the Court of Justice as a lawyer-linguist in the German Translation Division on 1 April 1982. Initially recruited as a member of the temporary staff, he was appointed a probationary official on 1 January 1983. On 1 October 1983 he was established and classified in Grade L/A 6, Step 2, with seniority in step backdated to 1 April 1982.

2 Following the secondment of an official from the Information Service, the appli- cant was made available to that service as from 1 June 1985.

3 Since the post reserved for the official on secondment had become vacant, the appli- cant was appointed as an administrator in the Information Service on 1 July 1991, and classified in Grade A 7, Step 3, as he had passed an internal competition intended to fill the post which he had occupied during the six years in which he had been made available to that service.

4 On 9 July 1991 the applicant applied to the head of the Personnel Division asking him to request the appointing authority to go back on its decision to classify him in Grade A 7 and classify him in Grade A 6.

5 On 12 July 1991 the appointing authority decided to pay the applicant a differen- tial allowance equal to the difference between the net remuneration relating to his former classification in Grade L/A 6, Step 6, and that relating to his new

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According to the case-law, an official may be appointed to the higher grade of the basic and intermediate career brackets only exceptionally and, in any event, this is in the discretion of the administration.

It was in the exercise of that discretion that, by its aforementioned decision of 11 July 1979 taken in the interest of complying with the principle of equal treatment in recruiting officials, the Court took the decision that it would, in principle, recruit officials from the Language Service in Grade A 7.

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KLINKE v COURT OF JUSTICE

Having regard to the circumstances of this case, the Administrative Committee has concluded that, by applying the decision laying down that principle, the adminis- tration did not wrongly assess the facts and did not treat you unequally by comparison with other officials called upon to carry out similar duties.

That conclusion is not altered by the fact that you had been made available to the Information Service for about six years. First, you are not entitled to rely on the alleged unlawful nature of that practice, to which you consented and which corre- sponded with your own aspirations. Secondly, the experience which you acquired in performing those duties was taken into account, to the extent permitted by Arti- cle 32 of the Staff Regulations, in classifying you in step in your new grade.

JUDGMENT OF 30. 3. 1993 — CASE T-30/92

11 The applicant claims that the Court should:

— declare the application admissible and well founded;

— as a result, annul the decision of the President of the Court of Justice, acting as the appointing authority, by which the applicant was appointed as an adminis- trator in the Information Service in Grade A 7, Step 3, and, in so far as is nec- essary, the Administrative Committee's decision of 21 January 1992 confirming the appointment of the applicant in Grade A 7, Step 3;

— declare that the applicant was entitled to be appointed in Grade A 6;

— order the Court of Justice to pay the whole of the costs.

KLINKE v COURT OF JUSTICE

The first plea alleging that the statement of reasons of the decision rejecting the complaint was erroneous

Arguments of the parties

1 4 The applicant considers that the interpretation given by the Administrative Com- mittee of the Court of Justice to the latter's decision of 11 July 1979, described as a 'decision that [the Court] would, in principle, recruit officials from the Language Service in Grade A 7' is without foundation, with the result that the statement of reasons of the decision rejecting the complaint is erroneous.

15 In the applicant's view, a 'decision ..., in principle, to recruit officials from the Lan- guage Service in Grade A 7' means that L/A 6 officials will move automatically to Grade A 7. He maintains that that interpretation is irreconcilable with both the spirit and letter of the decision of 11 July 1979, which does not debar officials mov- ing from Grade L/A 6 to Grade A 6, but merely provides that a career cannot automatically take that course.

16 The defendant considers for its part that the decision rejecting the complaint accu- rately takes account of the purport of the decision of 11 July 1979. In particular, the expression 'decision ... in principle' clearly signifies that the Court of Justice laid down a general rule to which exceptions remain possible in appropriate cases. That interpretation is, moreover, confirmed by the fifth paragraph of the decision rejecting the complaint, from which it is clear that the appointing authority took account of the specific situation of the applicant, but considered that the circum- stances of the case did not justify making an exception to the general rule.

18 The Court considers that the phrase 'decision ..., in principle, to recruit officials from the Language Service in Grade A 7' cannot be interpreted as meaning that it implies that officials in Grade L/A 6 will automatically move to Grade A 7.

1 9 As the defendant has argued, the use of the words 'decision ... in principle' expresses the idea of a general rule to which exceptions remain possible. On the one hand, such an interpretation of those words is consonant with their ordinary meaning and, on the other, only that interpretation is compatible with the struc- ture of the decision rejecting the complaint, since the fifth and sixth paragraphs of that decision would be redundant if the defendant had used the words 'decision ... in principle' in order to exclude any exception to the general rule.

20 That interpretation of the decision of 11 July 1979 is, moreover, in accordance with the consistent case-law of the Court of Justice and the Court of First Instance to the effect that only exceptionally may recruitment be made to the higher grade in the basic career bracket under Article 31(2) of the Staff Regulations (see, most recently, Case T-18/90 Jongen v Commission [1991] ECR II-187, paragraph 12).

21 Accordingly the first plea must be dismissed.

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KLINKE v COURT OF JUSTICE

25 In that respect the Court points out that it appears from the case-law of the Court of Justice that it is not permissible to recruit staff to the higher grade of a career bracket save in exceptional cases where the application of Article 31(2) is justified by the specific needs of the service, which call for the recruitment of a specially qualified official (judgment in Case 146/84 De Santis v Court of Auditors [1985] ECR 1723, paragraph 9).

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JUDGMENT OF 30. 3. 1993 — CASE T-30/92

26 Consequently, unlike the second paragraph of Article 32 of the Staff Regulations, which allows the appointing authority to grant a successful candidate in a compe- tition additional seniority in step to take account of his training and specific expe- rience, the purpose of Article 31(2) is to enable the appointing authority to have regard to the specific needs of a particular service by offering attractive conditions in order to attract specially qualified candidates.

27 However, the C o u r t notes that the applicant has n o t adduced any evidence, in par- ticular from the notice of competition, of such a kind as to s h o w that in this case the needs of the Information Service called for the recruitment of a specially qual- ified official.

28 Consequently, the applicant's qualifications w e r e irrelevant for the purposes of determining his classification in grade at the time of his a p p o i n t m e n t and, although the applicant was eminently qualified to occupy the p o s t to which h e was appointed at A 7 and which he occupies to the general satisfaction, that does n o t mean for all that that exceptional qualifications w e r e required in order to o c c u p y that post.

31 The defendant argues that the purpose of the competition was not to appoint administrators 'in Grade A 6 and A 7', but was only to 'recruit an administrator (career bracket A 7/A 6)'.

32 It points out, first, that it duly took account of the six years' work carried out by the applicant in the Information Service by granting him the maximum seniority in step.

33 Next, the defendant adds that the applicant wrongly attempts to compare his pos- ition with that of officials in Grade A 7. Since, at the material time, he was an offi- cial in Grade L/A 6, the applicant can only compare himself with other officials in the same grade. Since he admitted that the defendant treated him in the same way as 'any other official from the language service', he cannot claim to have been dis- criminated against. Citing five cases of L/A officials who had been appointed to Grade A 7 at the Court of Justice, it submits that the prohibition of discrimination, as embodied in particular in Article 5(3) of the Staff Regulations, obliged it to treat the applicant in the same manner as those other L/A officials.

Assessment of the Court

34 The Court considers that the applicant is wrong to claim that the Court of Justice had decided a priori that only officials in Grade A 7 could accede, through com- petition N o CJ 115/89, to Grade A 6. The decision of 11 July 1979 provides, in fact, that officials in Grade L/A 6 cannot claim to be 'automatically appointed in Grade A 6', which leaves open the possibility of appointing them at that grade.

35 In any event, the Court considers that the discrimination of which the applicant claims to have been the victim must be considered in the light of the rationale of the provision in respect of whose application he claims to have suffered discrimi- nation, as it has been defined in De Santis v Court of Auditors.

A r g u m e n t s of the parties

39 The applicant argues that his being made available to the Information Service had no legal basis, since only secondment and temporary occupation of a post are pro- vided for by the Staff Regulations. Having jeopardized his career by choosing an unlawful device, the appointing authority should, pursuant to its duty to afford assistance and have regard for the interests of officials enshrined in Article 24 of the Staff Regulations, remedy its wrongful conduct by classifying him in Grade A 6.

40 The defendant considers that, since the time-limits laid down by the Staff Regula- tions have expired, the applicant cannot now rely on the alleged unlawfulness of his having been made available to the Information Service.

Assessment of the Court

41 The Court of First Instance notes that the applicant admits that his having been made available to the Information Service lasted for about six years until it came to

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On those grounds,

THE COURT O F FIRST INSTANCE (Fifth Chamber)

hereby:

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JUDGMENT OF 30. 3. 1993 — CASE T-30/92

1. Dismisses the application;