OPINION OF ADVOCATE GENERAL

SIR GORDON SLYNN

delivered on 12 June 1986

My Lords,

Mr Hamai worked as an interpreter for the Commission between 1973 and 1977, finishing as an official in Grade L/A 7 Step 2. From 1977 to 1980 he worked as a freelance interpreter for the Commission, the Parliament and others. In 1980 he began to work at the Court of Justice as a freelance interpreter. At that time the practice was for the Court's interpreters to be engaged on a freelance basis or as temporary agents. In or before 1981 it was decided to create a service manned by interpreters who were to be established officials. An internal competition was held and a number of interpreters who were temporary agents succeeded in the competition and were appointed officials. Since he was freelance, and apparently not eligible to be a temporary agent because he was not a national of a Member State, Mr Hamai was not able to enter the competition, but on 20 January 1982 he accepted an offer of a contract as a temporary agent in Grade L/A 7 Step 3 for six months — a grade which he felt was not high enough but which he took because he was told that no L/A 6 posts were available. In the memorandum of appointment he was told that his contract was not to be taken as a promise that he would be established; such an appointment would depend on his passing a general competition and on a vacancy in the French booth becoming available.

On 15 October 1983 Mr Hamai wrote to the Registrar of the Court asking to be reclassified as Grade L/A 6 since a colleague in the Dutch booth who was in that grade was about to leave. He received no reply to his letter.

On 17 November 1983 notice of vacancy CJ 117/82 was published in respect of a vacancy as an interpreter in the French language in career bracket L/A 7 — L/A 6. It was expressly stated that the appointment would be Grade L/A 7, save in the case of the transfer of an official already in Grade L/A 6. On 29 November Mr Hamai applied for this L/A 7 post.

On 9 January 1984 that notice of vacancy was replaced by notice CJ 117/82 bis, in which it was said simply that the career bracket was L/A 7 — L/A 6. The limitation to L/A 7 for candidates not already in Grade L/A 6 contained in the earlier notice was deleted.

On 19 January 1984 an internal competition on the basis of qualifications and tests was announced for a French interpreter, again simply for the career bracket L/A 7 — L/A 6. Mr Hamai was the sole candidate; he succeeded in the competition, being appointed as a probationary official on 16 May 1984 in Grade L/A 7 Step 4 with effect from 1 June 1984, and receiving notice of his appointment by memorandum dated 24 May 1984.

On 21 June 1984 he asked the Court of Justice to reclassify him in Grade L/A 6 for reasons which he set out. Not having received a reply, and in order to protect his position, he submitted a complaint under Article 90 paragraph 2 of the Staff Regulations. The reasons set out in that application were supplemented by a memorandum of 21 November 1984. His complaint was rejected by the Complaints Committee of the Court of Justice, set up in 1983 to act as the appointing authority for such purpose, by a decision dated 13 December 1984 which was given to him on 8 January 1985.

Mr Hamai now applies to the Court to have that decision of the Complaints Committee set aside.

The defendant, in the interests of good order, contends that his application is inadmissible. The Complaints Committee, it is said, merely confirmed the original decision communicated to him on 24 May 1984. On the basis of a long line of cases (e. g. Case 227/83 Moussis v Commission [1984] ECR 3133) it is said that he should have attacked the primary rather than the confirmatory decision. That, I think, on the basis of earlier decisions is right though it is to be observed that in Case 25/83 Buick v Commission [1984] ECR 1773 and Joined Cases 20 and 21/83 Vlachos v Court of Justice [1984] ECR 4149 the applicants challenged decisions rejecting their complaints without objection from the Court. On any view the Court has accepted that an error may be excused if reasonable cause is shown (Case 117/78 Orlandi v Commission [1979] ECR 1613). The precise function of the Complaints Committee not having been appreciated, or indeed, it is said, known about until the defence was served, it seems to me understandable and excusable that the applicant should think that he must challenge their decision rather than the earlier decision. If I had not come to that view I would consider in the alternative, as did Mr Advocate General Capotorti in Case 145/80 Mascetti v Commission [1981] ECR 1975 at pp. 1989-1990 that if a decision is given by an institution without reasons, a complaint is then brought by an official against that decision and the answer to that complaint gives reasons which were not necessarily implicit in the original decision, that answer dismissing the complaint may constitute an act adversely affecting the applicant, which he may challenge directly. That seems to be the position here.

I would accordingly accept that this application is admissible.

At the heart of his complaint is the claim that he has been denied equal treatment with comparable appointees contrary to Article 5(3) of the Staff Regulations which provides that: ‘Identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service.’ He points to the fact that in 1981, five interpreters were appointed in Grade L/A 6, four of them having come second equal in the competition. His qualifications were no less, in some cases his experience longer, than theirs. The report at the end of his probationary period which expressed the view that his knowledge and professional experience, and the quality of his work, were superior to the grade he held, and that he deserved promotion, is relied on to show his abilities. Moreover, he says that the Complaints Committee appeared to accept that his professional experience and abilities were equal to certain of his colleagues. In addition, he says that no one of his experience and qualifications in the Court of Justice or in other institutions of the Community is below L/A 6: in particular appointments to the Court's Translation Service are made in Grade L/A 6.

For my part, I do not consider that generalized allegations as to other institutions are sufficient to show discrimination: nor do I think that the Translation and the Interpretation Services of the Court are for this purpose necessarily to be treated as being on all fours, since in the Translation Service applicants must have legal as well as linguistic qualifications. The crucial question is whether, in comparison with those members of the Interpretation Service appointed in 1981, he has been treated in such a way that he is entitled to have the decision set aside.

The Complaints Committee stated that appointments were made to Grade L/A 6 at a time when the Court was setting up its Interpretation Service; it was decided to appoint the successful candidates to Grade L/A 6 except for one person whose experience was less. For subsequent recruitment, the Service already being established, the Court decided to appoint to the starting grade of the category or service in accordance with Article 31(1) of the Regulations, taking account of experience for the purposes of deciding the step under Article 32.

Article 31 lays down the basic rule that selected candidates are to be appointed as officials in Category A or the language service to the starting grade in their category or service. It continues:

‘2. However, the appointing authority may make exceptions to the foregoing provisions within the following limits: (b) in respect of other grades’ (i. e. other than Grades A1, A2, A3 and L/A 3) ‘(i) up to one third of the appointments to posts becoming vacant; (ii) up to half the appointments to newly created posts.’

So far as relevant ‘this provision shall be applied by groups of six posts to be filled in each grade for the purposes of this provision’.

For these purposes it seems to me that it is the number in each grade which must be looked at and not the number of persons of each grade in a particular booth.

By Article 32 an official is to be recruited at the first step in his grade. ‘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’, in the instant case 48 months.

When the Interpretation Service was set up 13 posts were available. One was retained for the head of the service in L/A 3; one post in career bracket L/A 5 — L/A 4 and one in career bracket L/A 7 — L/A 6 were filled by transfer. That left 10 posts, of which three were initially in career brackets L/A 5 — L/A 4 and seven in career brackets L/A 7 — L/A 6: two of the former were downgraded to L/A 7-L/A 6 so that nine posts in that bracket were available. Adding back the one filled on transfer that gives 10. Four of these posts were filled by L/A 6 appointments and one by an L/A 7 appointment as a result of the 1981 competition. The second L/A 5 — L/A 4 post was also filled. The remainder were not at that stage filled.

From what the Court was told at the hearing it was apparently considered that up to one half of the total available posts might be filled at a grade higher than the starting grade — thus five out of 10 (or perhaps five out of nine) could be used and in this case they had been used. I do not read the last sentence of Article 31(2) in this way. The provision as to exceptions ‘shall be applied by groups of six posts to be filled in each grade’. Thus if six posts are to be filled, only three officials may be appointed to a grade above the starting grade. That number is not to be increased by reference to the total number of posts available but not at that stage to be filled. For subsequent appointments to newly-created posts not filled, up to one half, and to posts becoming vacant after being filled, up to one-third, of officials may be appointed to a grade higher than the starting grade. For such subsequent appointments, an institution does not have to wait until six posts are available before it can appoint in a grade higher than the starting grade. It may appoint the first official to a higher grade, so long as for the second group of six (or up to six) appointments, not more than half or a third (as the case may be) of appointments are to a grade higher than the starting grade. It does not seem to me, however, that it can validly be said that if an institution goes beyond half (or a third) in the first group of six, the excess over half (or a third as the case may be) is to be treated as having been taken from the second group of six so as to reduce the actual number available in that group for appointment in a higher grade.

In the present case it was said at the hearing by the defendant that Mr Hamai was being appointed to a newly-created post. It does not seem to me on the evidence available that the defendant had used up its quota of one half of the second group of six, even if for understandable reasons (since four of the candidates came out equal in the competition) more than half of the posts in the first group of six had been appointed to a grade higher than the starting grade. Accordingly, I do not consider that Mr Hamai is excluded in limine from being appointed to Grade L/A 6 by Article 31(2).

On the other hand Article 31 in itself plainly does not oblige an institution to appoint any candidates to a grade higher than the starting grade. It has, as the defendant contended at the hearing, a discretion under that Article whether to do so or not.

The question, however, remains as to whether Article 5(3), embodying a principle of equal treatment on recruitment, required that, in the exercise of that discretion on the facts of the case, Mr Hamai be treated broadly on the same basis as those officials appointed to L/A 6 posts following the 1981 competition.

The question is not an easy one.

On the one hand it seems to me that an institution is entitled to say that, as a general rule, once a certain number of posts has been filled at a grade higher than the starting grade, subsequent appointments will be at the starting grade. This decision may be justified by budgetary, administrative and hierarchical requirements. Thus if, as here, a new service of officials is created, and it is found desirable to appoint those temporary agents who have given substantial service to a grade other than the starting grade, it may be justified to make subsequent appointments in general at the starting grade.

On the other hand there is not in my view an absolute or rigid distinction between the position on the creation of a new service and on subsequent appointments. Regard must still be paid to the provisions of Article 5(3) of the Staff Regulations which the Court has repeatedly stressed ‘is of central importance to the legal provisions governing employees of the European Communities’ (Case 9/81 Williams v Court of Auditors [1982] ECR 3301 paragraph 21; Joint Cases 129 and 274/82 Lux v Court of Auditors [1984] ECR 4127 paragraph 20; Case 119/83 Appelbaum v Commission, judgment of 11 July 1985, ECR 2423, paragraph 25).

The applicant has relied on the decision in Lux where the Court ruled, in application of this principle, that ‘where an exception to the general rule governing appointments is introduced in the form of a general decision adopted within an institution the principle that there should be no discrimination between officials in any one category at the time of their recruitment, laid down by Article 5(3) of the Staff Regulations, would be deprived of any legal significance if in such a case the appointing authority still had the same discretion as is conferred upon it by Article 31 of the Staff Regulations’.

That decision does not, in my view, apply directly here since the defendant had not, subsequent to the creation of the service, adopted a policy or general decision that appointments should be to Grade L/A 6. Moreover recent notices of vacancy are either for L/A 7 — L/A 6 generally, or in that career bracket but limited to L/A 7. The decision does, however, emphasise the importance of broadly equal treatment despite the discretion conferred by Article 31(2).

Nor do I accept Mr Hamai's arguments that the Interpretation Service was still being set up in 1984 so that he was for that reason entitled to be treated like the others or that he was in some way penalized because he had to undergo a competition on qualifications and tests rather than just on qualifications.

The defendant has not suggested, and I do not consider, that the fact that Mr Hamai was unable in 1981 to enter the competition, in substance because his then nationality prevented him from being a temporary agent, in itself justified his being treated in a different way from others at a later stage when he was a temporary agent.

In this particular case there seem to me to be three factors of importance. In the first place the applicant had by 1984 as much experience as any of those appointed in Grade L/A 6, and almost twice as much as two of those so appointed, alongside all of whom he worked and had worked for some time. His qualifications were no less than theirs; the quality of his work was rated by the head of his division as being very high. In the second place, the post advertised was in the end not just in Grade L/A 7 but in career bracket L/A 7 — L/A 6, so that the defendant expressly gave itself the discretion to appoint in either grade, and an L/A 6 post was available. In the third place, for what seem to me to be intelligible reasons, the defendant did not stick to the letter of Article 31(2) in 1981, but appointed four of those who had achieved a comparable result in the competition on qualifications, including two with less experience than Mr Hamai, to L/A 6 posts.

I, of course, accept that administrative decisions of this kind involve a discretion to be exercised by the appropriate administrative authority. This, however, as counsel for Mr Hamai argued, is an exceptional case. Given the degree of flexibility adopted in relation to Article 31(2) in 1981 and the discretion to appoint to L/A 6 expressly retained in the notice of vacancy and of competition in 1984, it seems to me that Article 5(3) and the need to accord comparable treatment to comparable officials on recruitment, required that Mr Hamai be treated broadly on the same basis as those alongside whom he worked in 1981 and whose qualifications and experience were no greater. He was not, it is accepted, so treated. I do not consider that the distinction reliedon, between the setting up of the service and the later appointment, in this case justified that difference in treatment. This seems to me to be a matter with which this Court can deal by way of judicial review.

With the benefit of the fuller argument which this Court has had in its judicial capacity, I would accordingly set aside this decision in so far as it appointed Mr Hamai in Grade L/A 7 Step 4. In my view the appropriate grade would have been L/A 6 at a step to be assessed by the appointing authority as at 1 June 1984, which on the basis of the earlier appointments, would seem to be Step 2.

A second ground advanced is that the defendant failed to comply with the terms of the competition notice. Here the difference between the first notice of vacancy (L/A 7 except on transfer) and the subsequent notices of vacancy and internal competition (career L/A 7 — L/A 6) is relied on. I do not consider that the revised formula in itself obliged the defendant to appoint Mr Hamai to Grade L/A 6. It remained a matter of discretion to be exercised on the lines which I have indicated.

Then it is said that there was a breach of his legitimate expectations to be appointed in Grade L/A 6. He relies on an oral assurance given by the Head of the Service. Neither that nor the failure of the Registrar to reply to his request for an L/A 6 post can bind the appointing authority or, in my view, create a legitimate expectation that he would be put into that grade. Nor in view of the provisions of Article 31(2) can it be said that the appointment of others to L/A 6 in 1981 creates in itself a legitimate expectation that he must be so appointed. He can only succeed if he can establish that there has been disparate treatment.

The final argument, that what was done was in breach of rules of good administration, in this case seems to me to add nothing. If the defendant had been entitled to do what it did under Article 5(3) or the principle of comparable treatment, then it would have been within the margin of appreciation of the defendant.

I would, however, for the reason given, set aside the decision of 16 May 1984 in so far as it appointed Mr Hamai to Grade L/A 7 Step 4 and order that the defendant pay Mr Hamai's costs.