Judgment of the Court (Third Chamber) of 5 October 1988. - Gérard de Szy-Tarrisse and Yvette Feyaerts v Commission of the European Communities. - Officials - Former staff of the EAC - Classification upon their engagement as members of the temporary staff - Payment of default interest. - Joined cases 314/86 and 315/86.



European Court reports 1988 Page 06013



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

1 . Officials - Recruitment - Appointment in grade and classification in step - Taking into account of previous experience - Rules laid down by the Commission - Appointment to the higher grade in the career bracket - Discretion of the administration

( Staff Regulations, Arts 31 and 32, second paragraph )

2 . Officials - Remuneration - Reclassification undertaken in compliance with a judgment of the Court - Salary arrears - Entitlement to default interest - None unless the sum owed is certain or ascertainable

Summary

1 . For the purposes of classification in grade and step upon recruitment, the appointing authority has a wide discretion, within the limits laid down by Article 31 and the second paragraph of Article 32 of the Staff Regulations or by the internal decisions implementing those articles, in assessing the previous experience of a person recruited as an official, both as regards the nature and length of that experience and as regards the extent to which it meets the requirements of the post to be filled .

Although under Article 3 of Commission Decision 61/IX/81 on the criteria applicable to grade and step classification upon recruitment a newly recruited official may, in certain circumstances, be appointed to the upper grade in the starting or intermediate career bracket, that provision must be construed as an exception to the general rules of classification which in any event lies within the discretionary power of the administration .

2 . An obligation to pay default interest can arise only on condition that the amount of the principal sum owed is certain or can at least be ascertained on the basis of established objective factors . Where, in compliance with a judgment of the Court, the administration reclassifies a newly recruited official, the amount of the sum owed is not certain before the reclassification decision and therefore the salary arrears resulting from the new classification do not have to bear default interest .

Whether an obligation to pay default interest should be recognized where there is an unjustified delay in actually determining the amount of the remuneration owed is another matter .

Parties

In Joined Cases 314 and 315/86

Gérard de Szy-Tarisse, residing at 156 avenue Slegers, B-1200 Brussels ( Case 314/86 )

and

Yvette Feyaerts, residing at 6 rue de la Fontaine, B-1320 Genval ( Case 315/86 ),

officials of the Commission of the European Communities, represented by Marcel Slusny, of the Brussels Bar, 272 avenue Brugmann, B-1180 Brussels, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Centre Louvigny, 4 avenue Marie-Thérèse,

applicants,

v

Commission of the European Communities, represented by Hendrik van Lier, a member of its Legal Department, acting as Agent, assisted by Robert Andersen, of the Brussels Bar, 214 avenue Montjoie, B-1180 Brussels, having an address for service at the office of Georgios Kremlis, a member of the Commission' s Legal Department, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for the rectification of the applicants' administrative and financial situation as from the date on which they were recruited as members of the temporary staff, and for an award of damages,

THE COURT ( Third Chamber )

composed of : J . C . Moitinho de Almeida, President of Chamber, U . Everling and Y . Galmot, Judges,

Advocate General : M . Darmon

Registrar : H . A . Ruehl, Principal Administrator

having regard to the Report for the Hearing and further to the hearing on 20 April 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 31 May 1988,

gives the following

Judgment

Grounds

1 By applications lodged at the Court Registry on 16 December 1986, Gérard de Szy-Tarisse ( Case 314/86 ) and Yvette Feyaerts ( Case 315/86 ), officials of the Commission, brought two actions for the annulment of the decision of 3 February 1986 by which the Commission reclassified the applicants, and for an order requiring the Commission to pay them damages for the injury caused to them by that decision .

2 The applicants had been special contract staff of the European Association for Cooperation (" the EAC "), an international association whose aim was to facilitate economic cooperation by the European Communities with developing countries . The EAC had three categories of staff : headquarters staff, overseas staff and staff recruited by the EAC under a special contract providing for their secondment to Directorate-General VIII ( Development ) of the Commission .

3 By Council Regulation No 3245/81 of 26 October 1981 setting up a European Agency for Cooperation ( Official Journal 1981, L 328, p . 1 ) that agency took over the tasks of the EAC . In order to resolve the problems relating to the situation of the EAC' s headquarters' staff, the Council adopted Regulation No 3332/82 of 3 December 1982 laying down special transitional measures for the recruitment as officials of the European Communities of 56 members of the staff of the headquarters of the European Association for Cooperation ( Official Journal 1982, L 352, p . 5 ). That regulation provides that a staff member who occupied a post at the headquarters of the EAC on 1 January 1982 could be appointed a probationary official of the Commission and that, by way of derogation from Articles 31 and 32 of the Staff Regulations, that staff member would be appointed to the appropriate grade and step indicated in the table of equivalence in the annex to that regulation .

4 However, in order to permit the establishment of the 32 members of staff recruited by the EAC under a special contract (" special contract staff "), the Commission applied the provisions of the Staff Regulations of Officials of the European Communities . So in June 1981 the applicants received letters of dismissal from the EAC and, at the same time, the Commission offered them contracts as members of its temporary staff, which they accepted . Following the publication in July 1981 of a vacancy notice for 32 permanent posts granted by the budgetary authority, the Commission proceeded to organize internal competitions in which the applicants, in common with most of the former special contract staff, were successful . Following the expiry of their contracts as members of the temporary staff, the applicants were appointed as probationary officials . That application of the Staff Regulations had the following outcome as far as the applicants were concerned :

( i ) Mr de Szy-Tariss, who entered the service of the EAC on 18 February 1975 and at the time of his dismissal was classified in Grade 15, Step 7, corresponding to Grade A 5, Step 7, was appointed to Grade A 5, Step 3, by decision of 30 June 1982;

( ii ) Mrs Fayaerts, who had entered the service of the EAC on 1 April 1972 and at the time of her dismissal was classified in Grade 33, Step 6, corresponding to Grade C 3, Step 6, was appointed to Grade C 4, Step 3, by decision of 8 July 1982 .

5 On 27 April and 11 July 1983, several former special contract staff, including the applicants, brought actions before the Court essentially for a declaration that they had been employed by the Commission since the dates on which they had entered into their contracts with the EAC and for the annulment of the decisions appointing them as probationary officials in so far as they determined the applicants' grade and step . By judgment of 11 July 1985 in Joined Cases 66 to 68 and 136 to 140/83 Hattet and Others v Commission (( 1985 )) ECR 2459, the Court annulled the relevant decisions "in so far as they determine the applicants' grade and step"; the remainder of the applications were dismissed and the cases were remitted to the Commission for new decisions .

6 By decision of 3 February 1986 implementing the aforementioned judgment, the Commission reclassified the applicants with effect from the date on which they were appointed as probationary officials :

( i)Mr de Szy-Tarisse was appointed, with effect from 1 July 1982, to Grade A 5, Step 7, with seniority in step taking effect as from 1 February 1981;

( ii ) Mrs Feyaerts was appointed, with effect from 1 July 1982, to Grade C 3, Step 7, with seniority in step as from 1 April 1982 .

The Commission paid the applicants the additional salary resulting from the decision of 3 February 1986 at the same time as their remuneration for April 1986 .

7 On 12 and 6 May 1986 respectively, Mr de Szy-Tarisse and Mrs Feyaerts lodged complaints under Article 90 ( 2 ) of the Staff Regulations against the measures taken with regard to them pursuant to the judgment of 11 July 1985 . The Commission rejected those complaints on 19 September 1986 .

8 In their applications the applicants ask the Court to order the Commission to rectify their administrative and financial situation in the light of the judgment of 11 July 1985 . They consider that their new classification should start from the date on which they were engaged as members of the temporary staff and not from the date on which they were appointed as probationary officials and that they should be classified in higher grades and steps than their grading at the time of their dismissal by the EAC . They also seek compensation for the material damage which they claim they suffered as a result of the partial failure to comply with the aforementioned judgment, which they estimate provisionally at the principal sum of BFR 1 000 000, plus default interest; they also claim that the Commission should be ordered to pay default interest on the amounts already paid in partial compliance with that judgment . Furthermore, they claim the sum of BFR 100 000, again with default interest, in respect of the non-material damage resulting from the Commission' s failure fully to comply with the judgment in question .

9 Reference is made to the Report for the Hearing for a fuller account of the facts, 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 .

Admissibility

10 The Commission raises an objection of partial admissibility based on the fact that the applicants' claim for compensation for the damage resulting from an alleged setback to their careers was not set out in their previous applications ( Cases 68 and 138/83 ), which were the subject of the judgment of 11 July 1985 .

11 The applicants maintain that such a claim was unnecessary; those applications did not contain claims for the payment of sums either, yet that had not prevented the Commission from paying them the additional remuneration resulting from the new classification granted pursuant to the aforementioned judgment .

12 It should be pointed out that the sums claimed by the applicants by way of material damage allegedly suffered by them are equal to the additional remuneration, together with default interest, corresponding to the classification to which they consider themselves entitled in view of the unlawfulness of the contested decision . Such a claim is indissociable from the claims for the annulment of that decision, whose admissibility is not contested by the Commission .

13 In view of the foregoing, the objection of inadmissibility must be dismissed .

Substance

The claims for annulment

14 The applicants argue in the first place that, in view of the indications given by the Court in its judgment of 11 July 1985, they should have been reclassified with effect from the date of their engagement as members of the temporary staff . They maintain in support of that argument that it would be contrary to the principle of equal treatment for the former special contract staff to be adversely affected by the fact that the procedure applied to them differed from that applied in order to appoint the former EAC headquarters staff .

15 The Commission maintains that the aforementioned judgment confirmed that in the absence of a Council regulation making provision for measures identical to those taken in respect of the EAC headquarters staff, it had to apply the provisions of the Staff Regulations for the purpose of the recruitment of the special contract staff . Furthermore, that judgment did not state that the special contract staff should have been directly appointed as probationary officials of the Commission .

16 It must be pointed out, as the Court held in the aforementioned judgment of 11 July 1985, that the engagement and appointment by the Commission of the special contract staff of the EAC constituted recruitment of staff from outside the institutions . The fact that the provisions of the Staff Regulations laid down for that purpose were applied did not therefore constitute an irregularity of any kind .

17 It should also be pointed out that the observations made by the Court in that judgment with regard to the different treatment received by the special contract staff compared with that received by the staff of the headquarters of the EAC related only to the determination of the applicants' grade and step by the decisions appointing them as probationary officials and not to the date from which those decisions took effect .

18 Therefore, the applicants may not successfully claim on the basis of the judgment of 11 July 1985 that their reclassification should take effect from the date of their engagement as members of the temporary staff .

19 The applicants also maintain that under Articles 5, 31 and 32 of the Staff Regulations, on the one hand, and under internal Commission Decision 61/IX/81, on the other, they should have been classified in grades and steps higher than those which they had when they were dismissed by the EAC . Mr de Szy-Tarisse points out that he had 19 years' experience when he was dismissed by the EAC, which should be regarded as equal to, or exceeding, that of other former special contract staff who were appointed to Grade A 4 . Consequently, he argues that the Commission should have classified him in Grade A 4 . Mrs Feyaerts maintains that, in view of the duration of her employment, her age and her capabilities, the Commission should have classified her in Grade C 2 .

20 The Commission maintains that it correctly applied the criteria determined by Articles 5, 31 and 32 of the Staff Regulations and Decision 61/IX/81 in taking its decision on the reclassification of the applicants . Furthermore, pursuant to Article 8 of that decision, the applicants were granted additional seniority in step in order to take account of their period of employment as members of the temporary staff .

21 The Commission observes that when he was appointed as a probationary official Mr de Szy-Tarisse had 15 years' experience, including eight years with the EAC . At the hearing the Commission also pointed out, without being contradicted, that the experience claimed by the applicant included a period of activity which is to be regarded as relevant for Category B but which cannot be taken into account for the level of duties performed by Category A staff .

22 As for Mrs Feyaerts, the Commission maintains that Article 3 of Decision 61/IX/81 could not apply to her, since it provides in its second paragraph that the upper grade in the career bracket C 3/C 2 is reserved for promotions within the career bracket and no appointments can be made thereto .

23 In that connection, it must be pointed out in the first place, as the Court held in the aforementioned judgment of 11 July 1985, that "... the decisions appointing the applicants as probationary officials must be annulled in so far as they classify the applicants in grades or steps inferior to those which they held in the service of the EAC ". In this instance it is common ground that the classification in grade and step undertaken by the Commission in compliance with the aforementioned judgment is not inferior to the applicants' classification at the EAC .

24 However, it must still be considered whether, as the applicants maintain, either the provisions of the Staff Regulations or the provisions of Decision 61/IX/81 would entitle them to a higher classification in grade or step than they had at the EAC .

25 As far as Mrs Feyaerts is concerned, it must be held that whilst she was classified in Grade C 3 pursuant to the principle of equal treatment enunciated by the Court in its judgment of 11 July 1985, the second paragraph of Article 3 of Decision 61/IX/81 prevents her, however, from being appointed to Grade C 2, since that grade is reserved for promotions within the career bracket .

26 As far as Mr Szy-Tarisse is concerned, it must be pointed out that, according to a line of cases decided by the Court, the appointing authority has a wide discretion, within the limits laid down by Article 31 and the second paragraph of Article 32 of the Staff Regulations or by the internal decisions implementing those articles, in assessing the previous experience of a person recruited as an official, both as regards the nature and length of that experience and as regards the extent to which it meets the requirements of the post to be filled .

27 It must be borne in mind that under Article 1 of Decision 61/IX/81 the appointing authority is, as a general rule, to appoint any candidate selected as a probationary official in the starting grade of the lowest career bracket of his category or service . Admittedly, according to Article 3 of that decision, the appointing authority may exceptionally, by way of derogation from Article 1 and in order to meet recruitment needs, appoint the selected candidate to the upper grade in the starting or intermediate career bracket, provided that he satisfies certain requirements as to the length of his professional experience . However, as the Court pointed out in particular in its judgment of 21 January 1987 in Case 219/84 Powell v Commission (( 1987 )) ECR 339, that provision must be construed as an exception to the general rules of classification which in any event lies within the discretionary power of the administration .

28 In the present case, the applicant has not shown that the Commission exceeded its discretionary power in taking the view that it was not appropriate to apply that exception . Indeed, before taking its decision on the applicants' classification, the Commission took into account both the duration and the nature of the experience of all the former special contract staff concerned and the extent to which it met the requirements of the posts to be filled .

29 It follows that the applicants are not entitled to claim classifications in grade and step higher than those they had when they were dismissed by the EAC .

30 The claim for annulment must therefore be dismissed .

The claim for compensation

31 The dismissal of the claim for annulment necessarily entails the dismissal of the claim for compensation based on the alleged unlawfulness of the contested decisions .

32 There remains, however, the claim for default interest on the additional remuneration paid as a result of the reclassification carried out pursuant to the judgment of 11 July 1985 .

33 It must be pointed out in that regard, as the Court stated in particular in its judgment of 30 September 1986 in Case 264/83 Delhez and Others v Commission (( 1986 )) ECR 2749, that an obligation to pay default interest can arise only where the amount of the principal sum owed is certain or can at least be ascertained on the basis of established objective factors . In the present case, a debt of a certain amount came into being only as a result of the decision of 3 February 1986, on the basis of which the applicants were reclassified .

34 It follows that that claim must also be dismissed .

35 The applicants maintain in the alternative that in any event there was an unjustified delay before the Commission complied with the judgment of 11 July 1985 and that, as a result, default interest is due on the additional remuneration for the period between the date of that judgment and 6 February 1986 .

36 It must be observed in that regard that, as the Court held in its judgment in Delhez, the question could arise as to whether an obligation to pay default interest should be recognized where there was an unjustified delay in actually determining the amount of the remuneration owed . However, in this instance, in view of the difficulties created by the complex situation resulting from the employment of the former special contract staff, it cannot be considered that the Commission, in complying with the judgment of 11 July 1985, showed a lack of diligence in adopting on 6 February 1986 the decision reclassifying the applicants .

37 It follows that there is no obligation to pay default interest or to pay compensation for alleged damage resulting from the Commission' s delay in rectifying the applicants' situation . Their applications must therefore be dismissed in their entirety .

Decision on costs

Costs

38 Under Article 69 ( 2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . However, under Article 70 of the Rules of Procedure, in proceedings brought by servants of the Communities, institutions are to bear their own costs .

Operative part

On those grounds,

THE COURT ( Third Chamber )

hereby :

( 1 ) Dismisses the applications;

( 2 ) Orders the parties to bear their own costs .