JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

21 July 1998

Joined Cases T-66/96 and T-221/97

John Mellett

v

Court of Justice of the European Communities

‛Officials — Admissibility — Establishment — Legitimate expectations — Equal treatment’

Full text in English II-1305

Application for:

in Case T-66/96, annulment of the decision of the Court of Justice of the European Communities of 14 June 1995 and, in Case T-221/97, annulment of the decisions of the President of the Court of Justice of 17 October 1996 and 4 December 1996 not to commence the procedure leading to the establishment of the applicant as a permanent official.

Decision:

Annulment.

Abstract of the Judgment

Point 1 of the decision concerning the recruitment and establishment of drivers of the Members of the Court of Justice (Court), adopted by the Court on 30 June 1976 (1976 Decision), provides that drivers are to be engaged as temporary staff. Point 2 of the 1976 Decision provides that the establishment procedure may be commenced after three years' service on a proposal from the Member to whom the driver is assigned. After an internal competition, drivers shall be appointed probationary officials in career bracket D 3 - D 2.

In late 1991, Judge Murray asked Mr Mellett to become his personal driver. He informed him that he would be a member of the temporary staff for his first three years of service; on completion of those three years he could, on a proposal from the Judge, become a permanent member of staff. Mr Mellett was engaged as a member of the temporary staff from 16 May 1992. A proposal dated 1 February 1993 from the Head of the Personnel Division stated that the new scheme should apply to all drivers recruited with effect from the date on which it entered into force. As a transitional measure, the driver who was recruited as a member of the temporary staff on 16 May 1992 under the 1976 Decision could remain subject to the old provisions. That proposal was submitted to the Administrative Committee of the Court on 15 February 1993 and should subsequently have been submitted to the administrative meeting. However, that proposal, which the Administrative Committee had deferred to a subsequent meeting, was not reentered on the agenda of any administrative meeting. In response to Judge Murray's memoranda, the Registrar replied, on 7 March and 19 May 1995, that the Court had ended the practice of establishing the Members' drivers. At Judge Murray's request, the question was put to the Administrative Committee on 14 June 1995 which, by a decision later that day, took the view that the decision of 11 July 1994 should be applied to all drivers.

Admissibility

The Administrative Committee's decision of 14 June 1995 must be regarded as an act adversely affecting the applicant.

Notwithstanding the fact that the request was formally submitted by the applicant's immediate superior and not by the applicant himself, it must be construed as a request within the meaning of Article 90(1) of the Staff Regulations of Officials of the European Communities.

The negative reply given by the President of the Court on 17 October 1996 is in the nature of a decision.

Substance

The plea alleging breach of the principle of the protection of legitimate expectations

The right to rely on the principle that legitimate expectations should be respected extends to any individual who is in a situation in which it is clear that the Community administration has, by giving him precise assurances, led him to entertain reasonable expectations (paragraph 104).

See: T-3/92 Latham v Commission [1994] ECRSC II-83, para. 58; T-123/89 Chomel v Commission [ 1990] ECRSC II-131, para. 25 ; T-534/93 Grynberg and Hall v Commission [ 1994] ECRSC II-595, para. 51; T-498/93 Dornonville de la Cour v Commission [1994] ECRSC II-813, para. 46; T-235/94 Galtieri v Parliament [1996] ECRSC II-129, para. 63; T-211/95 Petit-Laurent v Commission [1997] ECRSC II-57, para. 72; T-207/95 Ibarra Gil v Commission [1997] ECRSC II-31, para. 25; T-35/96 Rasmussen v Commission [1997] ECRSC I-187, para. 63

Since the information provided to the applicant was precise, unconditional and consistent and came from authorised and reliable sources, it follows that the administration gave the applicant precise assurances. The fact that that information was given orally, rather than in writing, cannot alter that finding (paragraph 107).

The defendant submits that the assurances in question could not give rise to reasonable expectations on the ground that the decision of 30 June 1976 is clearly unlawful in so far as it provides for the holding of an internal competition in which the successful candidate is designated in advance. However, it cannot be argued that the 1976 Decision was so tainted with illegality that the applicant should have known that he could not rely upon it (paragraph 122).

The plea alleging breach of the principle of equal treatment

The principle of equal treatment is breached where two categories of person whose legal and factual circumstances disclose no essential difference are treated differently (paragraph 129).

See: Petit-Laurent v Commission, cited above, para. 56

In order to determine whether the refusal to commence the procedure for the establishment of the applicant constitutes a breach of the principle of nondiscrimination, it is necessary to consider whether the factual and legal circumstances of the applicant were actually the same as those of the drivers who had been established previously. It is therefore necessary to consider whether the Court validly adopted on 11 July 1994 a decision repealing the 1976 Decision. It is sufficient to point out that, in the present case, the Court has not adopted any such decision. In the decision of 11 July 1994 it merely asked the budgetary authority for a modification of its list of posts.

Furthermore, in order validly to repeal the 1976 Decision, the Court should have observed the administrative law principle of following the same procedures. The Staff Committee was not consulted before the adoption of the decision of 11 July 1994, whilst it had been consulted prior to the adoption of the 1976 Decision. It follows that, at the time when the contested decision was adopted, the applicant was in a situation comparable to the situation of drivers previously admitted to a competition held under the 1976 Decision. Mr Mellett was consequently the victim of discrimination (paragraph 138).

Operative part:

The decision of 14 June 1995 of the Administrative Committee of the Court of Justice, as it is apparent from point 4 of the minutes, and the decisions of the President of the Court of Justice of 17 October 1996 and 4 December 1996 not to commence the procedure which could have led to the establishment of the applicant as a permanent official, are annulled.

Officials — Admissibility — Establishment — Legitimate expectations — Equal treatment (JUDGMENT OF 21. 7. 1998 — JOINED CASES T-66/96 AND T-221/97 - MELLETT v COURT OF JUSTICE) II-1305