61983CJ0017_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 17/83
ANGEL ANGELIDIS, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDENT IN BRUSSELS, REPRESENTED BY EDMOND LEBRUN OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE,
APPLICANT,
V
COMMISSION OF THE COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, DIMITRIOS GOULOUSSIS, ACTING AS AGENT, ASSISTED BY DANIEL JACOB OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR ANNULMENT OF THE COMMISSION ' S REFUSAL TO GRANT THE APPLICANT ADDITIONAL SENIORITY OF TWO STEPS,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 1 FEBRUARY 1983, ANGEL ANGELIDIS, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION SEEKING THE ANNULMENT OF THE DECISION RELATING TO HIS STEP CLASSIFICATION, CONTAINED IN THE INSTRUMENTS OF 4 MAY AND 14 DECEMBER 1982 APPOINTING THE APPLICANT AS A PROBATIONARY OFFICIAL AND AS AN ESTABLISHED OFFICIAL IN GRADE A 5 RESPECTIVELY, AND ASSIGNING HIM TO THE DIRECTORATE GENERAL FOR AGRICULTURE AS A PRINCIPAL ADMINISTRATOR .
2 THE DOCUMENTS BEFORE THE COURT INDICATE THAT THE APPLICANT WAS ENGAGED, IN THE FIRST PLACE, BY A CONTRACT OF 11 JULY 1979 AS A MEMBER OF THE TEMPORARY STAFF IN THE CAPACITY OF TRANSLATOR AT GRADE L/A 7, STEP 3 . BY A CONTRACT OF 11 AUGUST 1980, HE WAS TRANSFERRED TO A POST OF ADMINISTRATOR IN THE DIRECTORATE GENERAL FOR AGRICULTURE, STILL AS A TEMPORARY EMPLOYEE, IN GRADE A 7, STEP 3, KEEPING THE SENIORITY ACQUIRED IN HIS PREVIOUS POST . HAVING BEEN SUCCESSFUL IN COMPETITION NO COM/A/377, HE WAS APPOINTED, BY A DECISION OF 4 MAY 1982, AS A PROBATIONARY OFFICIAL IN THE CAPACITY OF PRINCIPAL ADMINISTRATOR IN GRADE A 5, STEP 1 .
3 ON 14 JUNE 1982, MR ANGELIDIS SUBMITTED A COMPLAINT, REGISTERED ON 5 JULY 1982, SEEKING ADDITIONAL SENIORITY OF 48 MONTHS AND THEREFORE CLASSIFICATION IN STEP 3 OF GRADE A 5 . NO REPLY WAS MADE TO THAT COMPLAINT . BY A DECISION
OF 14 DECEMBER 1982, THE APPLICANT WAS ESTABLISHED IN THE SAME CAPACITY AND AT THE SAME GRADE AND STEP .
4 THE SUBJECT OF THE DISPUTE IS THE APPLICANT ' S STEP CLASSIFICATION . MR ANGELIDIS CONSIDERS THAT IN THE LIGHT OF HIS EXPERIENCE BEFORE ENTERING THE SERVICE OF THE COMMUNITIES, HE SHOULD HAVE BEEN CLASSIFIED, AT THE TIME OF HIS APPOINTMENT AS AN OFFICIAL, IN STEP 3 OF HIS GRADE, BY VIRTUE OF THE SECOND PARAGRAPH OF ARTICLE 32 OF THE STAFF REGULATIONS AND ARTICLE 5 OF THE COMMISSION DECISION OF 6 JUNE 1973 ON THE CRITERIA APPLICABLE TO GRADE AND STEP CLASSIFICATION UPON RECRUITMENT .
5 THE APPLICANT CLAIMS THAT THE COURT SHOULD :
( A ) ANNUL THE DECISIONS OF 4 MAY AND 14 DECEMBER 1982 IN SO FAR AS THEY CONCERN HIS CLASSIFICATION IN STEP ; AND
( B)DECLARE THAT HE MUST BE ASSIGNED TO STEP 3 OF GRADE A 5 .
6 THE COMMISSION ' S PRINCIPAL ARGUMENT IS THAT ARTICLE 32 OF THE STAFF REGULATIONS, RELIED UPON BY THE APPLICANT, IS NOT RELEVANT . THAT ARTICLE APPLIES ONLY TO CASES OF RECRUITMENT . HOWEVER, MR ANGELIDIS WAS NOT RECRUITED AS A RESULT OF THE CONTESTED DECISIONS BECAUSE HE WAS A MEMBER OF THE TEMPORARY STAFF BEFORE BEING APPOINTED AS AN OFFICIAL . HIS CASE MUST THEREFORE BE DEALT WITH BY ANALOGY WITH ARTICLE 46 OF THE STAFF REGULATIONS, WHICH DEALS WITH PROMOTIONS . HOWEVER, IN VIEW OF THE DISTANCE SEPARATING GRADE A 7, STEP 3, PREVIOUSLY OCCUPIED BY THE APPLICANT, AND GRADE A 5, MR ANGELIDIS COULD ONLY OBTAIN THE FIRST STEP IN HIS NEW GRADE .
7 IN THE ALTERNATIVE, THE COMMISSION CONTENDS THAT EVEN IF THE APPLICANT ' S APPOINTMENT TO GRADE A 5 MUST BE REGARDED AS A RECRUITMENT, HE DOES NOT MEET THE CONDITIONS LAID DOWN BY THE DECISION OF 6 JUNE 1973 BECAUSE HIS EXPERIENCE HAS NOT BEEN SUFFICIENTLY LONG . THE COMMISSION HAS ALREADY RECOGNIZED THAT HE HAS SEVEN YEARS '
EXPERIENCE, WHICH WAS ONE OF THE
CONDITIONS OF COMPETITION NO COM/A/377 . HOWEVER, THE TABLE ANNEXED TO THE DECISION OF 6 JUNE 1973 GRANTS ADDITIONAL SENIORITY ONLY IN RESPECT OF PREVIOUS EXPERIENCE OF MORE THAN EIGHT YEARS .
8 THE PARTIES '
ARGUMENTS MAKE IT NECESSARY TO DEFINE THE SCOPE OF ARTICLE 32, CONCERNING RECRUITMENT, AND OF ARTICLE 45 CONCERNING THE DETERMINATION OF STEP IN CASES OF PROMOTION TO A HIGHER GRADE .
9 ACCORDING TO THE FIRST PARAGRAPH OF ARTICLE 32 : ' ' AN OFFICIAL SHALL BE RECRUITED AT THE FIRST STEP IN HIS GRADE ' ' . THE SECOND PARAGRAPH ADDS : ' ' HOWEVER, 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 48 MONTHS, OR TWO STEPS, IN THE GRADE IN QUESTION .
10 ACCORDING TO THE FIRST PARAGRAPH OF ARTICLE 46, AN 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, SUBJECT TO THE PROVISO THAT, ACCORDING TO THE THIRD PARAGRAPH OF THE SAME ARTICLE, AN OFFICIAL APPOINTED TO A HIGHER GRADE IS ALWAYS TO BE CLASSIFIED NOT LOWER THAN THE INITIAL STEP FOR THAT GRADE .
11 THE PROVISIONS CONCERNING PROMOTIONS, OF WHICH ARTICLE 46 FORMS PART, WHETHER FROM THE POINT OF VIEW OF THEIR WORDING OR FROM THAT OF THEIR CONTEXT, ARE INTENDED TO GOVERN THE ADVANCEMENT, IN THEIR RESPECTIVE CATEGORIES AND BRANCHES, OF EMPLOYEES OF THE COMMUNITY WHO, AT THE TIME OF THEIR PROMOTION, ALREADY HAVE THE STATUS OF OFFICIALS . THOSE PROVISIONS ARE THUS NOT ADAPTED TO THE POSITION OF AN EMPLOYEE WHO, AFTER A PERIOD OF SERVICE AS A MEMBER OF THE TEMPORARY STAFF, OBTAINS, BY MEANS OF AN OPEN COMPETITION, HIS FIRST DEFINITIVE APPOINTMENT WITHIN THE COMMUNITY ADMINISTRATION AFTER COMPLETING THE REQUIRED PROBATIONARY PERIOD .
12 ON THE OTHER HAND, THE APPLICANT ' S CASE IS GOVERNED BY ARTICLE 32, WHOSE VERY PURPOSE IS TO GOVERN THE POSITION OF AN EMPLOYEE WHO HAS BECOME AN OFFICIAL OF THE COMMUNITY FOR THE FIRST TIME AS A RESULT OF A RECRUITMENT PROCEDURE WHICH WILL NORMALLY HAVE BEEN A COMPETITION .
13 IT FOLLOWS THAT THE COMMISSION, WHEN IT APPOINTED THE APPLICANT FOLLOWING UPON THE COMPETITION, WAS REQUIRED TO CONSIDER THE POSSIBILITY OF ADDITIONAL SENIORITY UNDER THE TERMS OF THE SECOND PARAGRAPH OF ARTICLE 32, IN THE LIGHT OF THE CRITERIA LAID DOWN IN ITS DECISION OF 6 JUNE 1973 . SINCE THE COMMISSION APPLIED ARTICLE 46 IN DETERMINING THE APPLICANT ' S STEP IN HIS GRADE, IT CANNOT HAVE CONSIDERED THE POSSIBILITY OF TAKING THE APPLICANT ' S PREVIOUS EXPERIENCE INTO ACCOUNT PURSUANT TO THE AFOREMENTIONED PROVISIONS . THE DECISIONS OF 4 MAY AND 14 DECEMBER 1982 MUST THEREFORE BE ANNULLED IN SO FAR AS THEY CONCERN THE APPLICANT ' S CLASSIFICATION IN STEP .
14 HOWEVER, THE APPLICANT ALSO ASKS THE COURT TO DECLARE THAT HE MUST BE ASSIGNED TO STEP 3 OF GRADE A 5 .
15 THAT ANCILLARY CLAIM IS INADMISSIBLE INASMUCH AS IT GOES BEYOND THE POWER OF REVIEW CONFERRED ON THE COURT, IN REGARD TO STAFF CASES, BY THE TREATIES AND BY THE PROVISIONS OF ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS .
16 AS THE COURT HAD OCCASION TO EMPHASIZE IN ITS JUDGMENT OF 1 DECEMBER 1983 ( CASE 190/82 BLOMEFIELD V COMMISSION ( 1983 ) ECR 3981 ), THE APPOINTING AUTHORITY HAS A WIDE DISCRETION, WITHIN THE LIMITS LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 32, IN ASSESSING THE PREVIOUS EXPERIENCE OF A PERSON APPOINTED AS AN OFFICIAL BOTH AS REGARDS THE NATURE AND THE DURATION OF THAT EXPERIENCE AND ITS RELATIONSHIP, BE IT CLOSE OR OTHERWISE, TO THE REQUIREMENTS OF THE POST TO BE FILLED .
17 IN THIS CASE, IT WILL BE FOR THE COMMISSION TO RECONSIDER THE APPLICANT ' S POSITION AND APPLY TO IT THE CRITERIA LAID DOWN IN ARTICLE 32 OF THE STAFF REGULATIONS AND THE DECISION OF 6 JUNE 1973 WITH A VIEW TO ARRIVING AT A DECISION ON THE APPLICANT ' S CLASSIFICATION IN STEP .
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 .
19 AS THE COMMISSION HAS FAILED IN ITS PRINCIPAL SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . ANNULS THE COMMISSION ' S DECISION OF 4 MAY 1982 APPOINTING THE APPLICANT AS A PROBATIONARY OFFICIAL IN GRADE A 5, STEP 1, AND ITS DECISION OF 14 DECEMBER 1982 ESTABLISHING HIM IN THE SAME CAPACITY IN SO FAR AS THEY CONCERN THE CLASSIFICATION IN STEP ;
2.DISMISSES THE REMAINDER OF THE APPLICATION ;
3.ORDERS THE COMMISSION TO PAY THE COSTS .