61984CJ0219(01)_EN
Parties
Grounds
Decision on costs
Operative part
Parties
IN CASE 219/84
MICHAEL POWELL, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 106 AVENUE CIRCULAIRE, BRUSSELS, 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 DIMITRIOS GOULOUSSIS, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, ALSO A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
APPLICATION FOR THE ANNULMENT OF THE COMMISSION' S DECISIONS OF 1 MARCH 1974 APPOINTING MR POWELL AS A PROBATIONARY OFFICIAL WITH EFFECT FROM 11*FEBRUARY 1974, AND 31 OCTOBER 1974 APPOINTING HIM AS AN ESTABLISHED OFFICIAL WITH EFFECT FROM 11 NOVEMBER 1974, BUT ONLY IN SO FAR AS THOSE DECISIONS CLASSIFY HIM IN GRADE A5,
THE COURT ( FIRST CHAMBER )
COMPOSED OF : F.SCHOCKWEILER, PRESIDENT OF CHAMBER, G . BOSCO AND R.*JOLIET, JUDGES,
ADVOCATE GENERAL : SIR GORDON SLYNN
REGISTRAR : P . HEIM
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 12 NOVEMBER 1986,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 12 NOVEMBER 1986,
GIVES THE FOLLOWING
JUDGMENT
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 28 AUGUST 1984 MICHAEL POWELL, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION' S DECISIONS OF 1 MARCH 1974 APPOINTING HIM AS A PROBATIONARY OFFICIAL WITH EFFECT FROM 11*FEBRUARY 1974, AND 31 OCTOBER 1974 APPOINTING HIM AS AN ESTABLISHED OFFICIAL WITH EFFECT FROM 11 NOVEMBER 1974, BUT ONLY IN SO FAR AS THOSE DECISIONS CLASSIFY HIM IN GRADE A5, AND THE DECISION NOTIFIED TO HIM BY MEMORANDUM OF 6 JANUARY 1984 FROM THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION CONFIRMING HIS ORIGINAL CLASSIFICATION IN GRADE A5 .
2 AN OBJECTION OF INADMISSIBILITY RAISED BY THE COMMISSION WITH REGARD TO THE APPLICATION WAS DISMISSED BY JUDGMENT OF THE COURT ( FIRST CHAMBER ) ON 14 NOVEMBER 1985, IN WHICH THE COURT RESERVED THE COSTS .
3 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE FACTS, THE COURSE OF THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
4 MR POWELL CLAIMS IN THE FIRST PLACE THAT THE APPOINTING AUTHORITY SHOULD NOT HAVE CLASSIFIED HIM IN GRADE A5 BECAUSE ACCORDING TO THE DECISION ON THE CRITERIA APPLICABLE TO GRADE AND STEP CLASSIFICATION UPON RECRUITMENT ADOPTED BY THE COMMISSION ON 6 JUNE 1973 HE SHOULD HAVE BEEN CLASSIFIED IN GRADE A4 .
5 UNDER ARTICLE 3 OF THAT DECISION AND BY WAY OF DEROGATION FROM ARTICLE 1, WHICH PROVIDES THAT ANY NEWLY RECRUITED OFFICIAL IS TO BE APPOINTED IN THE STARTING GRADE OF HIS CAREER BRACKET, THE APPOINTING AUTHORITY MAY, EXCEPTIONALLY AND IN ORDER TO MEET RECRUITMENT REQUIREMENTS, APPOINT A CANDIDATE TO THE UPPER GRADE IN THE STARTING OR INTERMEDIATE CAREER BRACKET, IF THE CANDIDATE FULFILS CERTAIN REQUIREMENTS . IN THE CASE OF GRADE A4 THE CANDIDATE MUST GIVE EVIDENCE OF A MINIMUM OF 12 YEARS' RELEVANT EXPERIENCE .
6 THE COMMISSION EXPRESSLY ACKNOWLEDGED IN THE COURSE OF THE PROCEDURE THAT AT THE TIME OF HIS RECRUITMENT THE APPLICANT HAD 12 YEARS AND THREE MONTHS' EXPERIENCE, AND THAT THE OPINION DELIVERED BY THE GRADING COMMITTEE AT ITS MEETING OF 13 DECEMBER 1983 FOLLOWING THE REQUEST FOR RECLASSIFICATION SUBMITTED BY MR POWELL ON 22 NOVEMBER 1983 PURSUANT TO A NOTICE DISTRIBUTED BY THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION ON 21 OCTOBER 1983 WAS BASED ON AN ERROR OF FACT . THAT OPINION, ON WHICH THE DECISION CONTAINED IN THE MEMORANDUM OF 6 JANUARY 1984 WAS BASED, REDUCED MR POWELL' S RELEVANT EXPERIENCE TO 11 YEARS AND THREE MONTHS ON THE GROUND THAT HE HELD A "UNIVERSITY DEGREE BASED ON A SHORT COURSE OF STUDIES", WHEREAS IT IS CLEAR FROM THE DOCUMENTS PRODUCED BY MR POWELL THAT HE ATTENDED A FOUR-YEAR UNIVERSITY COURSE AND THAT IN ANY EVENT HIS RELEVANT EXPERIENCE EXCEEDED 12 YEARS, EVEN ON THE BASIS OF THE CRITERIA APPLICABLE IN THE CASE OF A SHORT UNIVERSITY COURSE .
7 NEVERTHELESS, THE COMMISSION CONTENDS THAT ARTICLE 3 OF ITS DECISION OF 6 JUNE 1973 BY NO MEANS REQUIRED IT TO APPOINT THE APPLICANT IN GRADE A4, IT BEING CLEAR FROM THE WORDING OF THE DECISION THAT THE COMMISSION HAS SOLE DISCRETION TO DECIDE WHETHER OR NOT RECRUITMENT REQUIREMENTS WARRANT A DEPARTURE FROM THE GENERAL RULES GOVERNING CLASSIFICATION, EVEN WHERE A CANDIDATE FULFILS THE REQUIREMENTS WITH REGARD TO PROFESSIONAL EXPERIENCE SET OUT THEREIN .
8 THE COURT CONSIDERS THAT THE TENOR OF ARTICLE 3 IS SUCH THAT THE APPOINTMENT OF A NEWLY RECRUITED OFFICIAL TO THE UPPER GRADE IN THE STARTING OR INTERMEDIATE CAREER BRACKET MUST BE CONSTRUED AS AN EXCEPTION TO THE GENERAL CLASSIFICATION RULES, AND AS A DECISION WHICH IN ANY EVENT LIES WITHIN THE DISCRETIONARY POWER OF THE ADMINISTRATION .
9 WHILST THE ADMINISTRATION HAD A DISCRETION, THEREFORE, IT MUST ALSO HAVE EXCERCISED IT LAWFULLY, MAKING A DETAILED EXAMINATION OF THE SITUATION ON THE BASIS OF THE CORRECT FACTS . AS REGARDS THE DECISION OF 1 MARCH 1974 APPOINTING THE APPLICANT AS A PROBATIONARY OFFICIAL AND THE DECISION OF 31 OCTOBER 1974 APPOINTING HIM AS AN ESTABLISHED OFFICIAL, THE APPLICANT HAS NOT SUCCESSFULLY SHOWN THAT THEY WERE ADOPTED ON THE BASIS OF A MISAPPRECIATION OF THE FACTS .
10 THAT IS NOT THE POSITION AS REGARDS THE DECISION CONTAINED IN THE MEMORANDUM OF 6 JANUARY 1984 FROM THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION . IT APPEARS FROM THAT MEMORANDUM THAT, FOLLOWING THE REQUEST MADE BY MR POWELL ON 22 NOVEMBER 1983 FOR A REVIEW OF HIS CLASSIFICATION, THE APPOINTING AUTHORITY DECIDED TO CONFIRM HIS INITIAL CLASSIFICATION IN GRADE A5 AFTER EXAMINING HIS FILE AND ON THE BASIS OF THE OPINION DELIVERED BY THE GRADING COMMITTEE AT ITS MEETING ON 13*DECEMBER 1983, IN WHICH IT WAS HELD THAT THE APPLICANT' S RELEVANT EXPERIENCE AMOUNTED TO 12 YEARS AND THREE MONTHS, WHICH WAS REDUCED TO 11 YEARS AND THREE MONTHS .
11 IT IS CLEAR FROM THE REASONS STATED IN THE DECISION THAT WHEN IT REJECTED MR POWELL' S REQUEST FOR RECLASSIFICATION THE APPOINTING AUTHORITY RELIED EXPRESSLY ON THE OPINION OF THE GRADING COMMITTEE, WHICH WAS MANIFESTLY IN ERROR IN SO FAR AS IT REDUCED TO 11 YEARS AND THREE MONTHS MR POWELL' S RELEVANT EXPERIENCE BECAUSE IT WRONGLY CONSIDERED THAT HE HELD A UNIVERSITY DEGREE BASED ON A SHORT COURSE OF STUDY .
12 IN THE LIGHT OF THOSE CIRCUMSTANCES IT MUST BE HELD THAT THE APPOINTING AUTHORITY' S DECISION CONTAINED IN THE MEMORANDUM OF 6*JANUARY 1984 WAS TAKEN ON THE BASIS OF A MANIFEST ERROR OF FACT AND MUST THEREFORE BE ANNULLED .
Decision on costs
COSTS
13 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE COMMISSION HAS BEEN UNSUCCESSFUL IN ITS MAIN SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS, INCLUDING THOSE RELATING TO THE OBJECTION OF INADMISSIBILITY .
Operative part
On those grounds,
THE COURT ( First Chamber )
hereby :
( 1 ) Declares that the decision contained in the memorandum of 6*January 1984 from the Director-General for Personnel and Administration by which the appointing authority of the Commission confirmed Mr Powell' s original classification in Grade A5 is annulled;
( 2 ) Orders the Commission to pay the costs, including those relating to the objection of inadmissibility .