Judgment of the Court (Third Chamber) of 29 March 1984. - Adam Buick v Commission of the European Communities. - Official - Reclassification. - Case 25/83.



European Court reports 1984 Page 01773



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - RECRUITMENT - ASSIGNMENT OF GRADE AND CLASSIFICATION IN STEP - ' ' DECISION ' ' OF AN INSTITUTION CONCERNING APPLICABLE CRITERIA - LEGAL NATURE - INTERNAL DIRECTIVE - EFFECTS

A ' ' DECISION ' ' OF AN INSTITUTION ON THE CRITERIA APPLICABLE TO GRADE AND STEP CLASSIFICATION UPON RECRUITMENT OF OFFICIALS , COMMUNICATED TO ALL THE INSTITUTION ' S STAFF BY MEANS OF A NOTICE COMPRISING THE ABOVE-MENTIONED DECISION ( ANNEX I ), A STATEMENT OF THE PRACTICE RELATING TO ITS APPLICATION ( ANNEX II ) AND A LIST DESCRIBING THE MEMBERSHIP OF THE GRADING COMMITTEE ( ANNEX III ), CONSTITUTES AN INTERNAL DIRECTIVE WHICH SHOULD BE REGARDED AS A RULE OF CONDUCT INDICATING THE PRACTICE TO BE FOLLOWED , WHICH THE ADMINISTRATION IMPOSES ON ITSELF AND FROM WHICH IT MAY NOT DEPART WITHOUT SPECIFYING THE REASONS WHICH HAVE LED IT TO DO SO , SINCE OTHERWISE THE PRINCIPLE OF EQUALITY OF TREATMENT WOULD BE INFRINGED . THE SAME CONSIDERATIONS MUST APPLY WITH REGARD TO THE LEGAL NATURE OF ANNEX II TO THE NOTICE , ENTITLED ' ' PRACTICAL APPLICATION - GENERAL SURVEY ' ' , WHICH BRIEFLY DESCRIBES THE ' ' ESTABLISHED PRACTICE ' ' OF THE ADMINISTRATION IN APPLYING THE PROVISIONS LAID DOWN IN THE ' ' DECISION ' ' IN QUESTION , BY SETTING FORTH MORE SPECIFIC RULES WHICH THE ADMINISTRATION CONSIDERS ITSELF BOUND TO OBSERVE . IN CASE 25/83

Parties

ADAM BUICK , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED AND ASSISTED BY VICTOR BIEL , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE AT THE LATTER ' S CHAMBERS , 18 A RUE DES GLACIS ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY HENDRIK VAN LIER , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE SAID LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE APPLICANT ' S RECLASSIFICATION PURSUANT TO THE COMMISSION ' S DECISION ON THE CRITERIA APPLICABLE TO GRADE AND STEP CLASSIFICATION UPON RECRUITMENT ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 16 FEBRUARY 1983 , ADAM BUICK , AN OFFICIAL OF THE COMMISSION IN GRADE A 6 , BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 23 NOVEMBER 1982 REFUSING TO RECLASSIFY HIM IN GRADE A 6 WITH EFFECT FROM HIS TAKING UP DUTY IN JANUARY 1974 . HE HAD REQUESTED THIS RECLASSIFICATION UNDER THE PROVISIONS OF THE ' ' DECISION ON THE CRITERIA APPLICABLE TO GRADE AND STEP CLASSIFICATION UPON RECRUITMENT ' ' , ADOPTED ON 6 JUNE 1973 .

2 THE APPLICANT STARTED WORK FOR THE COMMISSION IN JANUARY 1974 AND WAS APPOINTED TO GRADE A 7 , STEP 3 . HE WAS PROMOTED TO GRADE A 6 ON 1 JANUARY 1978 .

3 IN MARCH 1982 , THE DIRECTOR GENERAL FOR PERSONNEL AND ADMINISTRATION ISSUED A NOTICE , WHICH HAS BEEN BROUGHT TO THE ATTENTION OF ALL THE STAFF OF THE COMMISSION AND ALL SUCCESSFUL CANDIDATES IN COMPETITIONS SINCE THAT DATE , COMPRISING THE ABOVE-MENTIONED ' ' DECISION ' ' OF 6 JUNE 1973 ( ANNEX I ), A STATEMENT OF THE PRACTICE RELATING TO ITS APPLICATION ( ANNEX II ) AND A LIST DESCRIBING THE MEMBERSHIP OF THE GRADING COMMITTEE , A BODY SET UP UNDER ARTICLE 6 OF THAT ' ' DECISION ' ' ( ANNEX III ).

4 ARTICLE 3 OF THE ' ' DECISION ' ' , WHICH DEALS WITH APPOINTMENTS TO THE UPPER GRADE IN A CAREER BRACKET , PROVIDES THAT :

' ' BY WAY OF DEROGATION FROM ARTICLE 1 , 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 GIVES EVIDENCE OF PROFESSIONAL EXPERIENCE , WITHIN THE MEANING OF ARTICLE 2 , OF AT LEAST : . . . EIGHT YEARS FOR GRADE A 6 . . . ' ' .

5 ARTICLE 2 OF THE ' ' DECISION ' ' PROVIDES THAT :

' ' PROFESSIONAL EXPERIENCE SHALL BE CALCULATED FROM THE TIME WHEN THE CANDIDATE WAS AWARDED THE QUALIFICATION GIVING ACCESS PURSUANT TO ARTICLE 5 OF THE STAFF REGULATIONS TO THE CATEGORY IN WHICH THE POST FALLS . . . ' ' .

6 PARAGRAPH 2 ( A ) OF ANNEX II TO THE STAFF NOTICE , WHICH RELATES TO THE PRACTICE OBSERVED IN APPLYING THAT ' ' DECISION ' ' , PROVIDES :

' ' ON A RECOMMENDATION FROM THE GRADING COMMITTEE BASED ON THE FACT THAT THE DURATION OF UNIVERSITY STUDIES VARIES IN THE MEMBER STATES BETWEEN THREE AND EIGHT YEARS , WHICH CAN LEAD TO DISTORTIONS IN GRADING , MEASURES HAVE BEEN TAKEN TO REDUCE THE GAP IN PRACTICE FROM FIVE YEARS TO TWO YEARS . WHERE UNIVERSITY STUDIES ARE SHORT , PRACTICAL EXPERIENCE IS TAKEN INTO ACCOUNT ONLY WITH EFFECT FROM THE FOURTH YEAR FOLLOWING THE COMPLETION OF ADVANCED SECONDARY STUDIES . WHERE UNIVERSITY STUDIES ARE LONG , PRACTICAL EXPERIENCE IS TAKEN INTO ACCOUNT FROM THE SEVENTH SUCH YEAR . ' '

7 ON READING THE ABOVE-MENTIONED NOTICE OF STAFF , THE APPLICANT SUBMITTED A REQUEST TO THE COMMISSION IN A MEMORANDUM DATED 27 APRIL 1981 , ASKING TO BE RECLASSIFIED IN GRADE A 6 WITH EFFECT FROM THE DATE OF HIS RECRUITMENT , IN ACCORDANCE WITH THE CRITERIA LAID DOWN IN ANNEXES I AND II , IN VIEW OF THE FACT THAT , WHEN HE ENTERED THE SERVICE , HE COULD PROVE EIGHT YEARS PRACTICAL EXPERIENCE , COUNTING FROM DECEMBER 1965 , FOUR YEARS AFTER THE COMPLETION OF HIS SECONDARY STUDIES .

8 IT APPEARS FROM THE DOCUMENTS ON THE FILE OF THE CASE THAT THE APPLICANT COMPLETED HIS SECONDARY STUDIES IN DECEMBER 1961 , WHEN HE TOOK THE ENTRANCE EXAMINATION TO OXFORD UNIVERSITY . HOWEVER , HE DID NOT BEGIN HIS UNIVERSITY STUDIES UNTIL OCTOBER 1962 , AND OBTAINED HIS UNIVERSITY DEGREE IN JUNE 1965 .

9 ON 11 MAY 1982 , THE GRADING COMMITTEE NOTIFIED THE APPLICANT OF ITS OPINION REFUSING HIS REQUEST FOR RECLASSIFICATION ON THE GROUNDS THAT HE COULD NOT SHOW PRACTICAL EXPERIENCE OF SUFFICIENT LENGTH .

10 ON 18 JUNE 1982 , THE APPLICANT LODGED A COMPLAINT WITH THE COMMISSION UNDER ARTICLE 90 OF THE STAFF REGULATIONS , CLAIMING THAT THE GRADING COMMITTEE HAD WRONGLY INTERPRETED THE DECISION OF 6 JUNE 1973 .

11 THAT COMPLAINT WAS REJECTED BY LETTER OF 23 NOVEMBER 1982 BY THE MEMBER OF THE COMMISSION IN CHARGE OF PERSONNEL AND ADMINISTRATION , WHO CONFIRMED THE INTERPRETATION OF THE GRADING COMMITTEE .

12 THAT IS THE DECISION AGAINST WHICH THE APPLICANT BROUGHT THESE PROCEEDINGS ON 16 FEBRUARY 1983 .

13 THE SOLE SUBMISSION PUT FORWARD BY THE APPLICANT ALLEGES THE ILLEGALITY OF THE DECISION REJECTING HIS COMPLAINT , WHICH IS DUE TO A MISINTERPRETATION AND HENCE AN INFRINGEMENT OF THE ' ' DECISION ' ' OF 6 JUNE 1973 . HE STRESSES THAT ACCORDING TO THE CLEAR TERMS OF PARAGRAPH 2 OF ANNEX II TO THE NOTICE MENTIONED ABOVE , PRACTICAL EXPERIENCE IS TO BE TAKEN INTO ACCOUNT WITH EFFECT FROM THE FOURTH YEAR FOLLOWING THE COMPLETION OF SECONDARY STUDIES . THEREFORE IN HIS CASE PRACTICAL EXPERIENCE SHOULD HAVE BEEN TAKEN INTO ACCOUNT FROM DECEMBER 1965 , SINCE IT IS COMMON GROUND THAT HE COMPLETED HIS SECONDARY STUDIES IN DECEMBER 1961 . EIGHT YEARS ' PRACTICAL EXPERIENCE SHOULD HAVE BEEN RECOGNIZED AT THE TIME OF HIS RECRUITMENT IN JANUARY 1974 AND THE APPLICANT SHOULD CONSEQUENTLY HAVE BEEN CLASSIFIED IN GRADE A 6 .

14 AGAINST THIS THE COMMISSION MAINTAINS THAT THE INTERPRETATION ADOPTED BY THE APPLICANT DOES NOT TAKE ACCOUNT OF EITHER THE CONTEXT TO WHICH ANNEX II TO THE NOTICE BELONGS , OR THE GENERAL SCHEME OF THAT ANNEX , AND ABOVE ALL DOES NOT TAKE ACCOUNT OF THE FACT THAT PARAGRAPH 2 ( A ) THEREOF IS JUSTIFIED BY A CONCERN TO AVOID DISTORTIONS IN CLASSIFICATION BY REDUCING PRACTICAL EXPERIENCE BY ONE YEAR IN THE CASE OF SHORT UNIVERSITY STUDIES , THAT IS TO SAY A COURSE OF STUDY NOT LASTING LONGER THAN THREE YEARS , AND , IN THE CASE OF LONG UNIVERSITY STUDIES , WHICH LAST FOR LONGER THAN SIX YEARS , BY REGARDING THEM AS EQUIVALENT TO PRACTICAL EXPERIENCE . ACCORDING TO THAT APPROACH , THE COMMISSION CONSIDERS THAT THE APPLICANT , ON ENTRY INTO THE SERVICE , DID NOT HAVE EIGHT YEARS ' PRACTICAL EXPERIENCE .

15 AS THE COURT HAS ALREADY HAD OCCASION TO DECLARE , THE ' ' DECISION ' ' ON THE CRITERIA APPLICABLE TO GRADE AND STEP CLASSIFICATION CONTAINED IN ANNEX I OF THE NOTICE TO STAFF IS AN INTERNAL DIRECTIVE WHICH SHOULD BE REGARDED AS A RULE OF CONDUCT INDICATING THE PRACTICE TO BE FOLLOWED , WHICH THE ADMINISTRATION IMPOSES ON ITSELF AND FROM WHICH IT MAY NOT DEPART WITHOUT SPECIFYING THE REASONS WHICH HAVE LED IT TO DO SO , SINCE OTHERWISE THE PRINCIPLE OF EQUALITY OF TREATMENT WOULD BE INFRINGED ( JUDGMENTS OF 1 DECEMBER 1983 IN CASE 190/82 BLOMEFIELD ( 1983 ) ECR 3981 ; CASE 343/82 MICHAEL ( 1983 ) ECR 4023 ). THE SAME CONSIDERATIONS MUST APPLY WITH REGARD TO THE LEGAL NATURE OF ANNEX II TO THE NOTICE , ENTITLED ' ' PRACTICAL APPLICATION - GENERAL SURVEY ' ' , WHICH BRIEFLY DESCRIBES THE ' ' PRACTICE ' ' OF THE ADMINISTRATION IN APPLYING THE PROVISIONS LAID DOWN IN THE ' ' DECISION ' ' IN QUESTION , BY SETTING FORTH MORE SPECIFIC RULES WHICH THE ADMINISTRATION CONSIDERS ITSELF BOUND TO OBSERVE .

16 THE WORDING OF THE DISPUTED PARAGRAPH 2 ( A ) SHOWS THAT THE PURPOSE OF THE COMMISSION , WHEN IT ADOPTED THE RULES THEREIN CONTAINED , WAS TO COMPLY WITH THE PROVISIONS OF ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS , WHICH LAYS DOWN THAT : ' ' IDENTICAL CONDITIONS OF RECRUITMENT AND SERVICE CAREER SHALL APPLY TO ALL OFFICIALS BELONGING TO THE SAME CATEGORY OR THE SAME SERVICE ' ' . IT FOLLOWS THAT THE DISPUTED PROVISION SHOULD BE INTERPRETED IN THE LIGHT OF THE GENERAL SCHEME OF THE MEASURE AND OF THE PURPOSE MENTIONED ABOVE .

17 AGAINST THAT BACKGROUND , IT MUST BE STATED THAT THE APPLICATION OF THE PROVISIONS OF ARTICLE 2 OF THE ' ' DECISION ' ' HAS BROUGHT TO LIGHT CONSIDERABLE DISPARITIES WHICH ARE DUE TO DIFFERENCES IN THE DURATION OF UNIVERSITY STUDIES BETWEEN MEMBER STATES , AND THAT IT WAS IN ORDER TO REDUCE SUCH DISPARITIES THAT THE COMMISSION ' S GRADING COMMITTEE PROCEEDED TO ESTABLISH THE SCHEME LAID OUT IN PARAGRAPH 2 ( A ) OF ANNEX II TO THE STAFF NOTICE . IT MUST THEREFORE BE CONCLUDED THAT THE PURPOSE OF THE PROVISIONS MENTIONED ABOVE WAS TO DEFINE THE LENGTH OF THE PRACTICAL EXPERIENCE TO BE TAKEN INTO ACCOUNT FOR PURPOSES OF CLASSIFICATION AS STARTING TO RUN FROM THE ACTUAL COMMENCEMENT OF UNIVERSITY STUDIES .

18 IN THOSE CIRCUMSTANCES , THE APPLICANT CANNOT RELY ON THE WORDING USED IN PARAGRAPH 2 ( A ) OF ANNEX II TO THE STAFF NOTICE , WHICH IS TO BE EXPLAINED BY THE FACT THAT , IN GENERAL , UNIVERSITY STUDIES BEGIN IMMEDIATELY AFTER THE COMPLETION OF SECONDARY STUDIES , AS THE COMMISSION HAS RIGHTLY OBSERVED . AS THE COMMISSION ALSO CORRECTLY EMPHASIZES , THE LITERAL INTERPRETATION OF THE PROVISION IN QUESTION WOULD LEAD TO ABSURD RESULTS BY TREATING AS YEARS OF PRACTICAL EXPERIENCE PERIODS OF INACTIVITY OR EXPERIENCE WITH NO RELEVANCE TO THE DUTIES PERFORMED .

19 IT FOLLOWS FROM THE FOREGOING THAT THE SOLE SUBMISSION ADVANCED BY THE APPLICANT CANNOT BE ACCEPTED AND , CONSEQUENTLY , THAT THE APPLICATION MUST BE YYDISMISSED .

Decision on costs

COSTS

20 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

21 THE APPLICANT HAS FAILED IN HIS SUBMISSION .

22 HOWEVER , IN VIEW OF THE WORDING OF THE PROVISION IN QUESTION , THE APPLICANT MIGHT WELL , AS THE COMMISSION HAS CONCEDED , HAVE BEEN MISLED AS TO THE EXTENT OF HIS RIGHTS ; IT IS THEREFORE APPROPRIATE TO APPLY THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE AND TO ORDER THE DEFENDANT TO BEAR THE COSTS IN THEIR ENTIRETY .

Operative part

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE DEFENDANT TO BEAR THE WHOLE OF THE COSTS .