61983CJ0266_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 266/83
EURIDIKI SAMARA, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN STRASSEN, REPRESENTED BY VICTOR BIEL, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS, 18A RUE DES GLACIS,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, DIMITRIOS GOULOUSSIS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MANFRED BESCHEL, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S REFUSAL TO RECONSIDER THE CLASSIFICATION WHICH THE APPLICANT OBTAINED FOLLOWING AN OPEN COMPETITION,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 28 NOVEMBER 1983, EURIDIKI SAMARA, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 16 FEBRUARY 1983 REFUSING TO RECONSIDER THE CLASSIFICATION IN STEP CONTAINED IN THE DECISION OF 21 DECEMBER 1982 APPOINTING THE APPLICANT A SECRETARY/SHORTHAND TYPIST IN THE DIRECTORATE-GENERAL ' PERSONNEL AND ADMINISTRATION ', IN GRADE C 3, STEP 1 .
2 THE APPLICANT WAS APPOINTED A PROBATIONARY OFFICIAL AT THE GENERAL SECRETARIAT OF THE COUNCIL, AS A TYPIST IN GRADE C 5, STEP 3, BY A DECISION OF 3 DECEMBER 1981, WITH EFFECT FROM 1 DECEMBER 1981 . BY A DECISION OF 22 DECEMBER 1981 SHE WAS TRANSFERRED TO THE COMMISSION, ALSO WITH EFFECT FROM 1 DECEMBER 1981 . SHE WAS ESTABLISHED IN HER POST WITH EFFECT FROM 1 JUNE 1982 . AFTER TAKING PART IN OPEN COMPETITION NO COM/C/365, SHE WAS APPOINTED TO HER PRESENT POST IN GRADE C 3, STEP 1 .
3 ON 26 JANUARY 1983 THE APPLICANT SUBMITTED A REQUEST THAT HER CLASSIFICATION IN STEP SHOULD BE RECONSIDERED AND ALL HER RELEVANT EXPERIENCE TAKEN INTO ACCOUNT . THAT REQUEST WAS REJECTED BY A DECISION OF 16 FEBRUARY 1983 . ON 26 APRIL 1983 SHE LODGED A COMPLAINT AGAINST THAT REJECTION, WHICH WAS IN TURN REJECTED BY THE COMMISSION .
4 THE DISPUTE CONCERNS THE APPLICANT ' S CLASSIFICATION IN STEP . THE APPLICANT TAKES THE VIEW THAT IN THE LIGHT OF HER RELEVANT EXPERIENCE PRIOR TO HER ENTRY INTO SERVICE, SHE OUGHT TO HAVE BEEN CLASSIFIED IN A HIGHER STEP IN GRADE C 3, BY VIRTUE OF THE SECOND PARAGRAPH OF ARTICLE 32 OF THE STAFF REGULATIONS, THE PROVISION WHICH GOVERNS THE CLASSIFICATION IN STEP OF AN OFFICIAL UPON RECRUITMENT .
5 IN SUPPORT OF THAT CLAIM, THE APPLICANT MAINTAINS THAT SHE WAS PLACED FIRST IN OPEN COMPETITION NO COM/C/365 AND THAT SHE HAD 17 YEARS RELEVANT EXPERIENCE PRIOR TO HER ENTRY INTO THE SERVICE OF THE COMMUNITIES, WHILST HER SISTER, KALLIOPI SAMARA, WHO WAS PLACED SECOND IN THE SAME COMPETITION AND WHOSE PROFESSIONAL EXPERIENCE WAS MUCH LESS, WAS APPOINTED TO STEP 2 OF GRADE C 3 AND THE CANDIDATE WHO WAS PLACED THIRD EVEN OBTAINED STEP 3 OF THAT GRADE .
6 THE COMMISSION DOES NOT DISPUTE THOSE FACTS . HOWEVER, IT CONSIDERS THAT THE APPOINTMENT OF THE APPLICANT TO GRADE C 3 DID NOT CONSTITUTE, AS SHE CLAIMS, A ' RECRUITMENT '
WITHIN THE MEANING OF ARTICLE 27 OF THE STAFF REGULATIONS, SINCE, WHEN SHE TOOK PART IN COMPETITION NO COM/C/365, SHE ALREADY HAD A LEGAL RELATIONSHIP WITH THE COMMISSION GOVERNED BY THE STAFF REGULATIONS . THE EXISTENCE
OF SUCH A RELATIONSHIP MADE IT IMPOSSIBLE TO REGARD AN IMPROVEMENT IN HER POSITION AS A RECRUITMENT TO WHICH ARTICLE 32 OF THE STAFF REGULATIONS WOULD HAVE BEEN APPLICABLE . ON THE CONTRARY, IT WAS A PROMOTION WITHIN THE MEANING OF ARTICLES 45 AND 46 OF THE STAFF REGULATIONS OR, IN ANY EVENT, AN APPOINTMENT WHICH MUST BE REGARDED AS A PROMOTION IN THE BROAD SENSE OF THE TERM AND TO WHICH ARTICLE 46 APPLIED . SINCE THAT WAS THE LEGAL POSITION, THE APPOINTING AUTHORITY HAD NO DISCRETION TO PLACE THE APPLICANT IN A HIGHER STEP IN HER GRADE .
7 THE APPLICANT PLEADS THE FOLLOWING SUBMISSIONS : ( I ) INFRINGEMENT OF THE RELEVANT ARTICLES OF THE STAFF REGULATIONS, IN PARTICULAR ARTICLES 27, 31, 32, 45 AND 46 ; ( II ) BREACH OF THE PRINCIPLE OF EQUAL TREATMENT ; ( III ) BREACH OF THE PRINCIPLE OF GOOD ADMINISTRATION, AND ( IV ) INFRINGEMENT OF ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS, WHICH, IN THE APPLICANT ' S VIEW, IS A FUNDAMENTAL RULE LAYING DOWN THE GENERAL PRINCIPLE THAT OFFICIALS ARE TO BE SUBJECT TO IDENTICAL CONDITIONS OF RECRUITMENT AND CAREER DEVELOPMENT .
8 IN ORDER TO CONSIDER THOSE SUBMISSIONS IT IS NECESSARY FIRST TO DETERMINE WHICH PROVISIONS ARE APPLICABLE TO A CASE SUCH AS THE APPLICANT ' S . IF THE APPOINTMENT IS THE RESULT OF A RECRUITMENT, THE APPOINTING AUTHORITY MAY, TAKING ACCOUNT OF THE TRAINING AND SPECIAL EXPERIENCE FOR THE POST OF THE PERSON CONCERNED, ALLOW ADDITIONAL SENIORITY IN HIS GRADE, WHICH IS LIMITED TO TWO STEPS ( SECOND PARAGRAPH OF ARTICLE 32 ). IF, ON THE OTHER HAND, THE APPOINTMENT FALLS WITHIN THE SCOPE OF THE PROVISIONS CONCERNING PROMOTION, THE OFFICIAL APPOINTED TO A HIGHER GRADE IS TO HAVE, IN HIS NEW GRADE, THE SENIORITY CORRESPONDING TO THE NOTIONAL STEP EQUAL TO OR NEXT ABOVE THE NOTIONAL STEP REACHED IN HIS FORMER GRADE, PLUS THE AMOUNT OF THE TWO-YEARLY INCREMENT FOR HIS NEW GRADE ( FIRST PARAGRAPH OF ARTICLE 46 ).
9 THE COMMISSION ACKNOWLEDGES THAT ARTICLES 45 AND 46 OF THE STAFF REGULATIONS DO NOT APPLY DIRECTLY TO THE APPLICANT ' S CASE, SINCE SHE WAS APPOINTED FOLLOWING AN OPEN COMPETITION AND NOT AS A RESULT OF THE PROMOTION PROCEDURE PROVIDED FOR IN ARTICLE 45 . THE PROVISIONS IN QUESTION ARE, HOWEVER, BASED ON THE PRINCIPLE THAT, ONCE A PERSON HAS BEEN ADMITTED TO THE BODY OF OFFICIALS OF THE COMMUNITIES FOLLOWING RECRUITMENT, HIS POSITION IS GOVERNED BY THE PROVISIONS RELATING TO THE CAREER DEVELOPMENT OF OFFICIALS . IN PARTICULAR, EXPERIENCE PRIOR TO ENTRY INTO SERVICE IS TAKEN INTO CONSIDERATION AT THE TIME OF AN OFFICIAL ' S INITIAL APPOINTMENT . IT IS NO
LONGER RELEVANT IN ANY SUBSEQUENT APPOINTMENT . FOR THOSE REASONS, IN THE COMMISSION ' S VIEW, THE PROVISIONS CONCERNING PROMOTION MUST BE APPLIED IN A CASE SUCH AS THAT OF THE APPLICANT, WHO WAS ALREADY AN OFFICIAL AND WHO WAS APPOINTED TO A HIGHER GRADE FOLLOWING HER SUCCESS IN A COMPETITION .
10 THE APPLICANT CONTESTS THAT ARGUMENT ON TWO GROUNDS . SHE SUBMITS IN THE FIRST PLACE THAT OPEN COMPETITIONS ARE THE NORMAL RECRUITMENT PROCEDURE PROVIDED FOR IN THE STAFF REGULATIONS, AS IS CLEAR FROM ARTICLE 29 IN PARTICULAR, AND THAT, ACCORDINGLY, THE APPOINTMENT OF CANDIDATES WHO ARE SUCCESSFUL IN SUCH COMPETITIONS MUST BE REGARDED AS RECRUITMENT . SHE THEN MAINTAINS THAT EVEN IF IT WERE OTHERWISE, UNDER ARTICLE 5 OF THE STAFF REGULATIONS AND IN ACCORDANCE WITH THE GENERAL PRINCIPLE OF EQUALITY, THE COMMISSION WOULD BE COMPELLED TO TREAT ALL THE PARTICIPANTS IN AN OPEN COMPETITION EQUALLY .
11 IN THAT RESPECT IT MUST BE POINTED OUT THAT THE DIFFERENCES BETWEEN THE PROVISIONS CONCERNING CLASSIFICATION IN STEP IN THE EVENT OF RECRUITMENT AND IN THE EVENT OF PROMOTION ARE EXPLAINED BY THE RESPECTIVE AIMS OF ARTICLES 32 AND 46 OF THE STAFF REGULATIONS . WHILE ARTICLE 32 CONCERNS AN EMPLOYEE WHO ENTERS THE SERVICE OF THE COMMUNITIES AND WHOSE TRAINING AND PREVIOUS EXPERIENCE MAY WITHIN CERTAIN FAIRLY STRICT LIMITS BE TAKEN INTO CONSIDERATION, ARTICLE 46 IS INTENDED TO ENSURE THAT IN THE NORMAL COURSE OF AN OFFICIAL ' S CAREER HIS SENIORITY PROGRESSES WITH THE GREATEST POSSIBLE CONTINUITY .
12 IT FOLLOWS THAT IN A CASE SUCH AS THE APPLICANT ' S THE APPLICATION OF THE PROVISIONS CONCERNING PROMOTION WOULD REQUIRE THE APPOINTING AUTHORITY TO ENSURE EQUALITY OF TREATMENT AS BETWEEN THE OFFICIAL WHO HAS BEEN SUCCESSFUL IN AN OPEN COMPETITION AND THE OTHER OFFICIALS, WHILST THE APPLICATION OF THE PROVISIONS ON RECRUITMENT WOULD HAVE THE EFFECT OF ENSURING EQUAL TREATMENT FOR ALL THE SUCCESSFUL CANDIDATES IN AN OPEN COMPETITION, REGARDLESS OF WHETHER THEY WERE OFFICIALS OR NOT .
13 IN EITHER CASE, THE APPLICATION OF THE RELEVANT PROVISIONS WOULD BE BY ANALOGY, SINCE THE STAFF REGULATIONS DO NOT CONTAIN ANY PROVISIONS WHICH GOVERN THE CLASSIFICATION IN STEP OF AN OFFICIAL APPOINTED TO ANOTHER POST FOLLOWING AN OPEN COMPETITION . SUCH AN APPOINTMENT DOES NOT FOLLOW THE PROCEDURES WHICH THE STAFF REGULATIONS LAY DOWN FOR THE PROMOTION OF OFFICIALS ; AT THE SAME TIME, IT CANNOT BE REGARDED AS
RECRUITMENT WITHIN THE STRICT MEANING OF THE WORD, SINCE THE EMPLOYEE IN QUESTION HAS ALREADY BEEN RECRUITED .
14 IT IS IN THAT AMBIGUOUS CONTEXT THAT THE COURT MUST APPRAISE THE COMMISSION ' S REFUSAL TO TAKE THE APPLICANT ' S PREVIOUS EXPERIENCE AND THE FACT THAT SHE WAS PLACED FIRST IN THE COMPETITION INTO ACCOUNT WHEN IT APPOINTED HER TO HER NEW POST ON THE GROUND THAT IT WAS NOT POSSIBLE TO AWARD SENIORITY IN STEP UNDER ARTICLE 46 .
15 CONSIDERATION OF THE FACTS OF THE CASE SHOWS THAT THE COMMISSION SHOULD HAVE APPLIED THE CRITERIA DEFINED BY ARTICLE 32, SINCE THE APPLICANT ' S APPOINTMENT TO HER NEW POST WAS NOT PART OF THE NORMAL DEVELOPMENT OF HER CAREER . IN THE FIRST PLACE, THE DIFFERENCES BETWEEN THE POST OF TYPIST WHICH SHE HELD AS AN OFFICIAL IN GRADE C 5 AND THE POST OF SECRETARY/SHORTHAND TYPIST TO WHICH SHE WAS APPOINTED WERE SUCH THAT SHE WAS ENTITLED TO DRAW ATTENTION TO HER PREVIOUS EXPERIENCE IN THE LATTER FIELD . SECONDLY, HER PARTICIPATION IN AN OPEN COMPETITION ORGANIZED SHORTLY AFTER HER ENTRY INTO THE SERVICE PLACED HER IN DIRECT COMPETITION WITH OUTSIDE CANDIDATES RATHER THAN WITH COLLEAGUES WHO WERE ELIGIBLE FOR PROMOTION . IN SUCH A CASE, THE PRINCIPLE THAT THE PARTICIPANTS IN AN OPEN COMPETITION DESERVE EQUAL TREATMENT MUST TAKE PRECEDENCE .
16 IT FOLLOWS THAT THE COMMISSION COULD NOT RELY ON ARTICLE 46 OF THE STAFF REGULATIONS TO MAINTAIN THE APPLICANT ' S CLASSIFICATION IN GRADE 3, STEP 1 . THE CONTESTED DECISION MUST THEREFORE BE ANNULLED .
17 THE COMMISSION MUST RECONSIDER THE APPLICANT ' S POSITION AND APPLY THE CRITERIA LAID DOWN IN ARTICLE 32 OF THE STAFF REGULATIONS .
Decision on costs
COSTS
18 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE COMMISSION HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . ANNULS THE COMMISSION ' S DECISION OF 16 FEBRUARY 1983 REFUSING TO RECONSIDER THE APPLICANT ' S CLASSIFICATION AND ITS DECISION OF 5 AUGUST 1983 REJECTING THE APPLICANT ' S COMPLAINT ;
2.ORDERS THE COMMISSION TO PAY THE COSTS .