OPINION OF ADVOCATE GENERAL

SIR GORDON SLYNN

delivered on 7 March 1985

My Lords,

Mr Esly was a successful candidate in general competition No PE/6/B organized by the Parliament. On 10 December 1979 he was examined by the Commission's medical officer and found fit for the tasks of an ‘assistant adjoint’. By letter dated 14 January 1980 the Director of Personnel of the Parliament was asked by the head of the Recruitment Division of the Commission to proceed to the appointment of Mr Esly as a probationary official of the Parliament, for simultaneous transfer to the services of the Commission. It was said that according to criteria followed by the Commission he could be classed in Grade B5 Step 2 and that it would be convenient for him to be transferred as at 1 February 1980. By a decision of 5 February 1980 he was appointed as a probationary official of the Parliament with effect from 1 March 1980, though that decision was annulled by decision of 28 July 1980 (Mr Esly being informed of it by note of 14 October 1980) and his appointment as a probationary official of the Parliament with effect from 1 May 1980 in Grade B5 Step 2 was confirmed. By a decision of 11 July 1980 (which Mr Esly acknowledged having received on 1 October 1980) he was transferred to the Commission and appointed to work as an inspector in the Customs Union stationed at Brussels with effect from 1 May 1980.

Mr Esly began to work at the Commission on 2 May 1980, the earlier date of 1 March having been changed because he was not available. He never did work at the Parliament at any time. The explanation given is that although he took the Parliament's competition, and not a Commission competition held at about the same time, there was no vacant post at the Parliament, whereas there was a vacant post at the Commission. The whole basis of his appointment was that, once appointed to the Parliament, he would immediately be transferred to the Commission. That was intended and that happened. He was appointed an official of the Commission with effect from 1 December 1980 having completed his probationary period.

On 30 May 1983 he asked that his appointment ‘made by the Parliament’ be rectified. Relying on a decision of the Commission relating to the criteria applicable to grade and step classification upon recruitment, he contended that both his professional experience and his military service should have been taken into account when fixing his grade and step. By letter of 20 June 1983 he was told that having been appointed by the Parliament, he could only be appointed on the terms applied by that institution, one of which was that he would not be appointed to a grade above the basic career grade. On transfer he had taken his classification with him.

On 22 June 1983 the applicant asked what periods of professional and military experience had been taken into account in fixing his grade. In reply on 30 June the Commission told him that, having been appointed by the Parliament, the criteria adopted by the Commission could not be applied to him. By a complaint dated 11 August 1983, pursuant to Article 90 (2) of the Staff Regulations, he relied on the fact that he had worked only for the Commission and that there was discrimination against him since another official with similar professional experience had been regraded. Mr Esly asked on the basis of his experience to be classified in Grade B4. That complaint was dismissed on 24 February 1984, the applicant receiving the rejection on 28 February 1984. The basis of the rejection was that all candidates engaged by the Parliament following the same competition as he took were treated alike; it did not fall to the Commission to change a classification properly made by the Parliament.

By application to the Court dated 10 May 1984 he asked that there should be applied to him the same criteria as were applied to the Commission officials recruited following competitions organized by the Commission, that he should be graded B4 retroactively to 2 May 1980, when he began work, or to 30 May 1983, when he first asked to be regraded, and that the decision rejecting his complaint dated 28 February 1984 should be annulled. He also asked that he should be paid the consequential difference in salary over the relevant period, with interest, and his costs.

The Commission says first that this application is out of time. The only event which Mr Esly could have complained about is his appointment dated 11 July 1980. Under Article 90(2) of the Staff Regulations he had three months from the date he was informed about that, namely 1 October 1980, in which to make a complaint, so that he was nearly three years out of time.

I do not accept that submission.

In the first place he is complaining, as part of his case, about discrimination between himself and at any rate one colleague of comparable experience appointed by the Commission, following a Commission competition, in 1978. That official was appointed in Grade B5 and on 27 May 1983 regraded in B4 Step 1 retroactively with effect from 16 October 1978. Mr Esly says that it was shortly after learning this that he made his request. The dates which he gives do not fit, since he says that he made his request on 30 May but that he learned of the other official's regrading only at the beginning of June. I consider it likely, however, that he has become confused about dates and I would accept his statement that he was inspired to ask for a regrading by what he was told by telephone had happened to his colleague, even though the regrading of the colleague is not mentioned in either of his two letters prior to the complaint.

His complaint on this basis is that he was discriminated against when his colleague was retroactively regraded and he was refused such regrading. That is a different event from his appointment in 1980 and in my view the refusal to consider regrading him contained in the letter of 20 June 1983, or the failure to regrade him when the other two officials were regraded, are capable of being acts adversely affecting him. On this basis his complaint of 11 August 1983 was in time.

Alternatively and leaving aside his claim based on discrimination, it seems to me that, once he learned that the other officials had been regraded, this was a new fact which entitled him to submit to the appointing authority a request that it took ‘a decision relating to him’ under Article 90 (1) of the Staff Regulations. No time limit is expressed for the making of such a request in the Staff Regulations, though it must obviously be made within a reasonable time. Here it was made in a reasonable time and the rejection of his request to consider regrading him was in my view capable of being an act adversely affecting him within the meaning of Article 90 (2) of the Staff Regulations.

Accordingly, in my view, this application should be accepted as being admissible. I would, however, reject, for the reasons given in Case 227/83 Moussis v Commission (judgment of 12 July 1984), the applicant's arguments that by not taking the time limitation point in reply to his complaint the Commission cannot raise it in these proceedings.

The applicant claims that what happened is a breach of Article 5 (3) of the Staff Regulations which requires that ‘identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service’. It is also a breach of Article 32 that his special experience was not taken into account for the purpose of assessing seniority in his grade. The decision, moreover, violates the Commission's own criteria of 6 June 1973, and principles of nondiscrimination, legitimate expectation and good administration.

The Commission stonewalls on all these points. The applicant, it says, was recruited by the Parliament and transferred to the Commission. He must accept the conditions applicable to, and applied to, those recruited by the Parliament and those relevant to, and applied to, officials who are transferred to the Commission, having been recruited elsewhere. On this basis there was no unfairness or discrimination and he would never have expected to be treated differently from those persons appointed by the Parliament. He has been treated in the same way. The criteria applicable to the Commission's own recruits have no relevance to him.

I accept the Commission's submissions that ‘recruitment’ and ‘transfer’ are different processes and for some purposes they have to be distinguished. On that basis I agree that Article 32 by its express terms is not applicable to the case of a transferee.

This, however, is, even if not a unique case, an unusual case. Although technically he was recruited by the Parliament and transferred to the Commission the applicant was, once he had been accepted for appointment, always intended to work for the Commission. He was never in any real sense a member of the Parliament's staff and was never intended so to be.

In my view, fairness, as an aspect of good administration, requires, on the facts of this case, that Mr Esly should be treated on the same basis as the other two officials whose grade was reviewed, even if he was a transferee and they were recruits. The distinction which the Commission relies on between the recruit of, and the transfer to the Commission has no substance in this case where he was transferred immediately on recruitment. They should be treated alike.

In my view, he is entitled to have his case reviewed. That does not necessarily mean of course that he gets the same result, since the Court has not gone into the detail of the three cases, although it has not been suggested by the Commission that, if he is entitled to a review like the others, he is entitled to any grade other than the one given to them, namely B4 Step 1.

It seems to me that, by parity of reasoning, he had a legitimate expectation that he would be treated on the same basis as others in a similar situation once he and they were actually working in the Commission.

I do not accept that Article 5 (3) is of no relevance and that a comparison cannot validly be made between Mr Esly and the recruit referred to in the papers on the basis that he is a transferee. It is too simplistic merely to say that recruits and transferees in a situation like that of Mr Esly are in wholly different categories. In my view, Mr Esly and the recruit were on the same footing so that either, as I think, by the express words of Article 5 (3) or by analogy identical conditions of service must be applied to him as to them.

On this basis Mr Esly does not need Article 32, but if it had been necessary, I would have taken the view that in his case it would be right to apply it by analogy, in the same way as Article 70 of the Court's Rules of Procedure is treated as applying not merely to officials commencing proceedings within the meaning of Article 95 (3), but also to external candidates in competitions who initiate proceedings before the Court.

There has been much argument about the effect of the revised decision on the criteria applicable to grade and step classification upon recruitment issued in 1983. The covering memorandum signed by the Director General for Personnel and Administration stated that ‘Exceptionally, any official graded under the old decision who feels that he has not been graded according to the criteria laid down by it has a final opportunity to apply for regrading within 3 months of the date of this publication’.

The same point is taken by the Commission that this only applies to recruits stricto sensu. The reply is the same. Fairness requires that it be applied actually or by analogy to someone in pari materia a recruit as was Mr Esly.

Then it is said that this document cannot start time running again for the purposes of Article 90 (2) of the Staff Regulations. Even if that is so, it does not deprive Mr Esly of the opportunity of being treated like others in like conditions. It is clear that this memorandum is later than Mr Esly's complaint and that he could not, therefore, rely on it in the complaint, nor does it make his specific complaint in time if it was otherwise out of time, even though he could have made a subsequent complaint based on the revised decision. It seems to me, however, that if recruits in a similar position were either entitled or allowed to rely on this memorandum, so was the applicant.

If the decision is annulled, the Commission will need to consider his request for regrading.

If, as seems likely, he is found to be on the same basis as the other two now regraded, then he will be regraded B4 Step 1. Any such regrading should in my view be retroactive to 1 May 1980, if the others were regraded retroactively to their date of first appointment. He should be paid any arrears of salary and interest if that is what, in principle, the others received.

Accordingly, in my view the Commission's decision of 24 February 1984 rejecting the applicant's complaint against the refusal of his request to be regraded should be annulled. The Commission should pay the applicant's costs.