C-298/93

KLINKE v COURT OF JUSTICE

OPINION OF ADVOCATE GENERAL GULMANN delivered on 10 February 1994 *

Mr President, 3. Mr Klinke submitted a complaint against Members of the Court, the decision appointing him an administra­ tor, inasmuch as it classified him in Grade A 7, and requested that he be classified in Grade A 6. He maintained, first, that, by classifying him in Grade A 7, the appointing authority had not taken into account the exceptional circumstance that he had per­ 1. This appeal is brought by Mr Klinke, an formed for six years the duties pertaining to official of the Court of Justice, against the the post to which he was ultimately judgment delivered by the Court of First appointed. Whilst recognizing that the Instance in Case T-30/92 on 30 March appointing authority has a discretion in that 1993. 1By that judgment, the Court of First regard, he submitted that Instance dismissed the action brought by Mr Klinke for a declaration that his classification in grade on his appointment as an official in category A was not in accordance with the applicable law. 'discretion cannot be exercised otherwise than by classification in Grade A 6. This is a necessary consequence of the principle of equal treatment for all officials: no other offi­ cial has worked in his post for six years whilst remaining in his starting grade.'

That conclusion is not altered by the fact 4. That complaint was rejected by decision of that you have been placed at the disposal of the Administrative Committee of 20 Janu­ the Information Service for approximately ary 1992, which found that the classification six years. First, it is not open to you to rely had been decided '... in accordance with the on the alleged unlawfulness of that arrange­ consistent practice of the Court, which was ment, to which you consented and which decided on the basis of its case-law at the corresponded to your personal aspirations. administrative meeting on 11 July 1979'. The Second, the practical experience acquired by Administrative Committee's decision went you in the performance of those duties has on to state: been taken into account, within the limits allowed by Article 32 of the Staff Regula­ tions, for the purposes of your classification in step within your new grade.'

'According to the Court's case-law, an offi­ cial may only in exceptional circumstances be appointed in a higher grade within the starting and intermediate career brackets; 5. Mr Klinke then brought proceedings such appointment lies in any event within before the Court of First Instance, pleading the discretionary power of the administra­ inter alia a manifestly erroneous assessment tion. of the facts, breach of the principle of non­ discrimination and breach of the duty to have regard for the welfare and interests of officials laid down by Article 24 of the Staff Regulations. The Court of First Instance dis­ missed the action as unfounded.

7. In support of its plea of inadmissibility, the respondent argues that, for the purposes of deciding appeals, the jurisdiction of the Court of Justice is limited to examining only 10. Both Mr Klinke and the appointing questions of law, and that the appellant's authority accept as an established fact the pleas relate only to questions of fact. The contention that the appointing authority has respondent has not particularized that objec­ a discretion to take a decision such as that at tion of inadmissibility. issue in this case. However, Mr Klinke takes the view that the exercise of that discretion must necessarily have resulted in his being appointed to Grade A 6. According to him, the fact that he had for six years performed entirely satisfactorily the duties attaching to 8. In commenting on that objection, it the post to which he was finally appointed should be noted, first, that there is no dis­ must necessarily entail such classification. pute whatever between the parties as to the The crux of Mr Klinke's argument — if I facts of the case and, second, that the Court have understood it correctly — is that in has established that its task in deciding 'normal circumstances', that is to say, if he appeals is also to '... verify whether the find­ had been appointed to that post from the ings and assessments made by the Court of start of the period when he was placed at the First Instance within the scope of its sole disposal of the Information Service, he could jurisdiction show that the lower court cor­ have expected to be promoted after having rectly carried out a legal characterization of satisfactorily carried out those duties for six the facts ...'. 2 years.

It is in that regard undeniable, and is, more­ over, not disputed, first, that the starting However, the judgment went on to state point is the fact that administrators are that, as is apparent from the case-law of the appointed to Grade A 7 and are only Court of Justice (Case 146/84 De Santis v appointed to Grade A 6 in exceptional cir­ Court of Auditors [1985] ECR 1723), 'it is cumstances and, second, that the Staff Regu­ not ... permissible to recruit staff to the lations do not place any specific restrictions higher grade of a career bracket save in on the appointing authority's power to exceptional cases where the application of decide not to appoint a person to Grade A 6. Article 31(2) is justified by the specific needs of the service, which call for the recruitment of a specially qualified official'. Thus the object of Article 31(2) is to permit the appointing authority to ensure that the spe­ 13. As to the various pleas put forward in cific needs of a particular service are met by support of the appeal, the first alleges that offering enticing terms with a view to the Court of First Instance erred in its attracting particularly well-qualified candi­ assessment of the plea advanced in support dates. of the application, to the effect that there had been a manifestly erroneous assessment of the facts.

14. Next, the Court of First Instance found that Mr Klinke had produced no evidence whatsoever to show that in the present case In the proceedings before the Court of First the needs of the Information Service were Instance, Mr Klinke argued that, taking into such as to require the recruitment of a par­ account his lengthy experience in the Infor­ ticularly well-qualified official (paragraph mation Service and his ability, which was 27). According to the Court of First highly regarded by his hierarchical superior, Instance, therefore, 'the applicant's qualifica­ it was not open to the appointing authority tions were irrelevant to the determination of

18. It is not easy to identify any such argu­ ments. One argument could be that Art­ icle 32 of the Staff Regulations expressly 16. As to the question whether Article 31(2) governs the way in which the practical allows the individual qualifications of the experience of the official recruited is to be official recruited to be taken into account on taken into account. his classification in grade, the starting point

4 — Article 31(1) and (2) provides: 3 — See, for example, paragraph 26 of the judgment in De Szy- '1. Candidates thus selected shall be appointed as follows: Tarisse and Feyaerts v Commission, in which the Court of — officials in Category A or the Language Service: Justice stated: to the starting grade of their category or service; '... it must be pointed out that, according to a line of cases decided by the Court, the appointing authority has a wide 2. However, the appointing authority may make exceptions discretion, within the limits laid down by Article 31 and the to the foregoing provisions within the following limits: second paragraph of Article 32 of the Staff Regulations or by (a) in respect of Grades A 1, A 2, A 3 and LA 3, the internal decisions implementing those articles, in assess- ing the previous experience of a person recruited as an offi- (b) in respect of other grades, cial, both as regards the nature and length of that experience — up to one third of the appointments to posts becoming and as regards the extent to which it meets the requirements vacant; of the post to be filled'. — up to half the appointments to newly created posts.'

It could be argued that the objective of Art­ icle 32 is to recompense the previous experi­ ence of the official recruited, whereas that of 21. That plea must be rejected, given that Mr Article 31(2) is to take into account the spe­ Klinke has not even attempted to demon­ cific needs of the service where the recruit­ strate the validity of the essential premiss ment of a particularly well-qualified candi­ underlying his argument, namely that spe­ date is required; that would prevent his cific experience may entitle the person who previous experience from being recompensed possesses it to be appointed to the higher twice over. However, in order for such an grade in the career bracket. argument to be valid, good reasons would have to be advanced for the view that Art­ icle 32 lays down exhaustive rules regarding the taking into account of the training and experience of the official recruited. I have difficulty in identifying any such reasons, particularly given that the decision regarding 22. As to the second plea, alleging a breach classification in grade is taken at the same of the principle of non-discrimination, it time as that regarding classification in step. should be noted that this was rejected by the Consequently, and with reference to the case-law cited by the parties, I propose that the Court should quash that part of the 5 — See, inter alia, the judgment of the Court of First Instance in judgment of the Court of First Instance. Case T-38/89 Hochbaum v Commission [1990] ECR II-43, paragraph 24.

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KLINKE v COURT OF JUSTICE

23. Mr Klinke maintains in his appeal that the Court of First Instance was wrong in its view that the relevant comparative criterion can only be the specific requirements of the different posts to be filled. Mr Klinke asserts Mr Klinke has not asserted that any other that the comparative criterion for the pur­ persons in situations corresponding to his poses of assessing whether he has suffered own have been appointed by the appointing discrimination 'can only be the individual authority to Grade A 6. Consequently, his

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OPINION OF MR GULMANN — CASE C-298/93 P

plea must be understood as meaning that the 27. Lastly, Mr Klinke considers that the appointing authority has treated different sit­ Court of First Instance failed to take account uations in the same way. This corresponds, of his plea concerning the duty to have in my view, to Mr Klinke's basic argument; regard for the welfare and interests of offi­ although he has occupied the post satisfacto­ cials. More precisely, Mr Klinke maintains rily for six years, he has received the same that that duty, which is enshrined in Ar­­ treatment as that accorded to individuals icle 24 of the Staff Regulations, obliged the who are recruited without possessing the rel­ appointing authority to remedy the adverse evant experience. consequences suffered by him as a result of his having been placed, unlawfully or con­ trary to the Staff Regulations, at the disposal of the Information Service.

That plea of discrimination would appear merely to reflect the basic argument that the appointing authority was bound to draw the conclusion desired by Mr Klinke, by reason 28. The Court of First Instance rejected that of his six years' service in the post in ques­ plea as inadmissible, in the following terms tion. (paragraphs 41 and 42):

29. In his appeal, Mr Klinke challenges that reasoning, maintaining that he suffered Even if it were possible to accept Mr adverse consequences from his secondment Klinke's argument that it was the duration of only because the period in question lasted his secondment which adversely affected for over six years. He goes on to state: 'That him, the fact remains that the appropriate argument concerning secondment in circum­ response would have been to request the ter­ stances not provided for under the Staff Reg­ mination of his secondment, thereby trigger­ ulations for a period in excess of six years is ing the procedure laid down by the relevant different from the argument which the Court articles. of First Instance understood him to be put­ ting forward. It was only the persistence of a situation not in conformity with the Staff Regulations' which adversely affected Mr Klinke. 32. Mr Klinke's appeal is therefore unfounded in its entirety. Even though my analysis has shown that the reasons for the contested judgment cannot be upheld in every respect, the operative part of the judg­ 30. Allow me to point out that the substance ment is well founded on other legal grounds, of the case is not altered by that plea either; and the appeal must be dismissed in accor­ it is not open to Mr Klinke, by invoking the dance with the decision in Lestelle v Com- duty to have regard for the welfare of offi­ 6 mission. cials, to impose on the appointing authority an obligation to produce, in the exercise of its discretion, a result which is not provided for by the Staff Regulations.

and

— order each party to bear its own costs.

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