OPINION OF MR ADVOCATE GENERAL LENZ

delivered on 29 November 1984 ( *1 )

Mr President,

Members of the Court,

The present action turns on the question whether the seniority of an official who, after successfully taking part in an open competition, is transferred from Category B to Category A, is to be determined in accordance with the rules in the Staff Regulations on promotion or those on recruitment.

1. The facts of the case may be summarized as follows:

The applicant, Bernard Michel, who was born in 1945, has been an official of the European Communities since 1975. He started as an Administrative Assistant in Grade B 4 and in 1979 was promoted to Senior Administrative Assistant in Grade B 3. In addition to carrying out his duties, the applicant followed a course of study at the Institut d'Enseignement Supérieur Lucien Cooremans, in Brussels, which he completed in 1977, obtaining a Licence en sciences commerciales et consulaires (civil service qualification in business studies) and qualifying as an Agrégé de l'enseignement secondaire supérieur pour les sciences commerciales (a person entitled to teach commerce in senior schools).

After successfully taking part in an open competition organized by the Commission (Competition No COM/A/325), based on qualifications and tests, to constitute a reserve of administrators in Career Bracket A 7/A 6 (Official Journal 1981 C 233, p. 21), the applicant, who at that time was in the fourth step in Grade B 3, was appointed, by a Commission decision of 11 May 1983, an Administrator in Grade A 7, Step 1, with effect from the first of that month. The decision was based inter alia on Articles 1, 2, 29 and 30 of the Staff Regulations and on the Commission's decision of 10 March 1971 on criteria for determining the grade and step of officials changing category, as amended by the decision of 7 January 1976 (classification criteria applicable to officials changing category).

According to those decisions, any official who is appointed to a post in a career bracket which belongs to a higher category is to be classified in the starting grade of that career bracket. It is further provided, in accordance with the first paragraph of Article 46 of the Staff Regulations, that the official in question is to have the seniority corresponding to the notional step equal to or next above the notional step reached in his former grade.

The applicant objected to his classification in the first step of Grade A 7 in accordance with those criteria by means of a complaint submitted through official channels in due form and time. Essentially, he stated that after taking part in an open competition he should be accorded the same rights and advantages as those enjoyed by candidates who had not previously been officials of the Communities. By virtue of Article 5 of the Commission Decision of June 1975 on the Criteria Applicable to Grade and Step Classification upon Recruitment (criteria for classification upon recruitment), additional seniority was to be granted to such officials on the basis of relevant experience of a specified period. He claimed that, according to that provision, he should be classified in the fourth step of Grade A 7, in view of his experience as an official since he obtained his university degree in 1977.

That complaint was rejected by a Commission decision of 20 September 1983, essentially on the ground that the appointment of the applicant was to be regarded as the transfer of an official from one category to another and not as a case of recruitment.

On 14 December 1983 the applicant brought an action claiming that that decision should be annulled and that the Court should declare that he is entitled to additional seniority, in accordance with the Commission's criteria for classification upon recruitment, in the same way as a newlyrecruited candidate. The applicant also requested that the Commission should be ordered to recognize his relevant experience acquired since the award of his university degree or, in the alternative, that the Appointing Authority should be ordered to reclassify him, taking into account the above considerations.

2. My opinion on those claims is as follows :

2.1. The claim for annulment of the classification of the applicant in the first step of Grade A 7 in accordance with the classification criteria applicable to officials changing category

2.1.1.

In the applicant's view, his classification in the first step in accordance with the classification criteria for officials changing category is in breach of the principle of equal treatment of officials in the same category, as laid down in Article 5 (3) of the Staff Regulations. By virtue of that principle, all participants in an open competition must be classified in accordance with the same criteria. However, whilst candidates recruited externally are awarded additional seniority on account of previous experience in accordance with the criteria for classification upon recruitment, which are based inter alia on Article 32 of the Staff Regulations, that does not apply to officials already in the service of the Community, to whom the classification criteria applicable to officials changing category are applied. Since those criteria cannot override the mandatory rules of the Staff Regulations, the criteria for classification upon recruitment should be followed for his classification in step.

(a) The first point to make in relation to that submission is that no-one disputes that the criteria for classification upon recruitment are based on the relevant rules of the Staff Regulations regarding recruitment, whereas the classification criteria applicable to officials changing category are based on the articles of the Staff Regulations relating to promotion, in particular Article 46. Thus, the latter rules were unlawfully applied in the applicant's case only if he should have been appointed an Administrator in Grade A 7 in accordance, not with Articles 45 and 46 of the Staff Regulations concerning promotion, but rather in accordance with Article 32, in the chapter entitled ‘Recruitment.’

(b) Contrary to the applicant's opinion, it cannot be argued that his transfer from Category B to Category A in accordance with the rules on promotion was unlawful by reason of the fact that, in the competition notice and in other standardized documents drawn up for open competitions in general, the defendant, in the applicant's view, gave the impression that ‘recruitment’ was involved. Neither is the contested decision of 11 May 1983 vitiated by the fact that it is based inter alia on Articles 29 and 30 of the Staff Regulations. Those provisions merely contain a statement regarding the procedure to be followed before filling a vacant post but give no answer to the question at issue here, namely which rules are to be applied to classification in step in cases such as this one.

(c) The answer to that question is not to be found in Articles 29 and 30 but can be arrived at only by defining the scope of Article 32 and Article 45 et seq. of the Staff Regulations. The Court has already undertaken such a definition in Angelidis (Case 17/83 ( 1 )), which concerned the classification in step of an official who was initially a member of the temporary staffln Grade A 7 and was then appointed an official in Grade A 5. As the Court made clear in that case, the rules on promotion are intended to govern the advancement in their grades of Community staff who at the time of their promotion are already officials of the Communities. The purpose of Article 32, on the other hand, is to determine the position under the Staff Regulations of persons who are taken on as officials of the Community for the first time following a special recruitment procedure. Although that decision contains no express statement as to how to deal with the case of an official who, after taking part in an open competition, is transferred to the next higher category, it can nevertheless be deduced therefrom that Article 32, in so far as it refers to officials who are recruited, is not directly applicable to the present case.

(d) The transfer to be considered here, namely the transfer of the applicant from Grade B 3 to Grade A 7 after his participation in an open competition, does not — and it must be conceded that the applicant is right in this respect — constitute a promotion within the meaning of Article 45 (1) of the Staff Regulations. The effect of such a promotion, as stated in that provision, is that the official moves up to the next higher grade in his category. The case of Moussis (227/83 ( 2 )) was concerned with a situation of that kind. In that case I expressed the view that the continuity of an official's career could not be interrupted, as a result of his participation in an open competition, by a fresh assessment of his experience which had already been taken into account in his initial classification.

(e) Article 45 (2) is, on the other hand, directly relevant to this case; it provides that ‘An official may be ... promoted from one category to another only on the basis of a competition’. Since, however, that provision has no legal consequences other than the requirement of a competition, it can either be seen, in accordance with the applicant's view, as a provision referring to Article 29 et seq. (up to and including Articles 31 and 32), which inter alia provide for a competition, or else it can be interpreted — as it is interpreted by the Commission — to the effect that in derogation from Article 45 (1) it prescribes a competition for the cases referred to but does not derogate from the provisions of Article 46 governing classification in step. (i) The context of Article 45 (2) and also the wording of the rules on promotion seem to me to favour the interpretation put forward by the Commission. Thus, the fact cannot be overlooked that the provision in question forms part of Article 45, which governs the conditions for and the effects of promotion, and it is directly followed by Article 46, which lays down the legal consequences of promotion. Had the authors of the Staff Regulations wished to exclude those legal consequences in the circumstances governed by Article 45 (2), they would have been able, and indeed obliged, to express that intention by means of an appropriate choice of words for the sake of the clarity of the law. Finally, the wording of those articles in all the authentic language versions also indicates that Article 46 is applicable both to cases covered by Article 45 (1) and to those covered by Article 45 (2). Whereas Article 45 (1) provides that promotion brings about a transfer to the next higher grade in a category, Article 45 (2) speaks of the transfer of an official to a higher category. The wording of Article 46 is obviously intended to cover both cases, providing as it does that an official appointed to a higher grade is to have the seniority therein specified. (ii) Final proof that this carefully settled wording is not the result of chance or a drafting error is provided by Article 15 of the Conditions of Employment of Other Servants of the European Communities. According to the first paragraph of that article, temporary staff are to be graded initially in accordance with Article 32 of the Staff Regulations. If on the other hand a member of the temporary staff is assigned to a post carrying a higher grade than that at which he is engaged by means of an agreement supplementary to his contract of service, then by virtue of the second paragraph of that article his grading is to be determined ‘in accordance with Article 46 of the Staff Regulations’. If the authors of the Staff Regulations had wished the experience of a servant of the Communities to be reassessed in the event of his employment in a more senior post, then the reference, in respect of members of the temporary staff, to the promotion rules in Article 46 would be simply inexplicable, in view of the possibility of amending the contract. It clearly follows, in my opinion, from that provision that, for the sake of equal treatment of all servants of the Communities, the authors of the Staff Regulations sought to ensure that their experience would, in principle, be assessed only once, upon entry into the service of the Communities, in accordance with Article 32, which allows a margin of discretion in that respect. Contractually agreed employment in a higher post, on the other hand, should be in accordance with the calculation formula contained in Article 46 of the Staff Regulations. That consideration must, however, also apply a fortiori to the upward reclassification of officials, for whom the Staff Regulations, by contrast with the case of temporary staff of the Communities, provide the opportunity of a career, to which, by virtue of Article 5 (3) of the Staff Regulations, identical conditions are to apply. Repeated evaluation of relevant experience (in particular when it has in part been acquired in the service of the Communities) following participation in an open competition would not as a general rule be in conformity with the objective of Article 5 (3). Consequently, there are in principle no grounds for criticizing the classification of the applicant in accordance with the criteria applicable to officials changing category, which are based essentially on the promotion rules contained in the Staff Regulations. A different assessment would perhaps be conceivable if specific experience which it was not possible to take into account for a particular kind of activity (for example, translating) were wholly relevant to another type of activity (for example, administration) and therefore ought to be taken into account. However, there appears to be no evidence of that kind in this case.

2.1.2.

That being so, it is nevertheless necessary to verify whether, as the applicant considers, the application of those provisions is to be excluded as infringing the principle of nondiscrimination, where they lead to an official's being placed in a less-favourable position than external candidates who take part in the same competition and whose experience is evaluated in accordance with the second paragraph of Article 32 and the criteria for classification applicable upon recruitment.

In the Commission's opinion, all that can be inferred from that principle is that, on the one hand, all participants in an open competition must be subject to the same conditions regarding tests and, on the other, that participants satisfying the same requirements are to be classified in the same grade or step. Since, however, the status of an official is very different from that of an external candidate, a different classification does not constitute a breach of the principle of equal treatment.

(a) In relation to that argument, it should be pointed out that the application of the rules on promotion to participants in a competition who are already officials of the Community may, but need not necessarily, lead to their being placed in a less-favourable position than external candidates, who are classified in accordance with the rules on recruitment. If my understanding is correct, it is just as easy to imagine cases in which the application of Article 46 places officials who are already in a high grade or step in a more advantageous position than external applicants, who by virtue of the second paragraph of Article 32 of the Staff Regulations may be classified no higher than Step 3 of their grade.

(b) However, different treatment is deliberately prescribed by the Staff Regulations, as is apparent from the differences between the rules for recruitment and the provisions regarding promotion. That difference in treatment does not offend against the principle of equal treatment of officials in the same grade, because the status of candidates in a competition who are already officials is different in several respects from that of candidates entering the service of the Communities for the first time. Article 29 (1) of the Staff Regulations takes that difference into account, in so far as it provides that before filling a vacant post the Appointing Authority must first consider whether the post can be filled by promotion or transfer within the institution, whether to hold competitions internal to the institution and what applications for transfer have been made by officials of other institutions of the European Communities. Furthermore, in the case of staff already in the service of the Communities, the age-limit may, by virtue of Article 1 (g) of Annex III to the Staff Regulations, be extended, which is not the case for other candidates. Moreover, it is important to note that, with the exception of officials in Grades A 1 and A 2, all external candidates must, by virtue of Article 34 of the Staff Regulations, serve a probationary period before they can be established. Contrary to the opinion of the applicant, officials who have already been established cannot be required to serve such a probation period. In my opinion, these advantages accruing to officials under the Staff Regulations justify their having to accept the fact that the application of the rules on promotion may entail a disadvantage in terms of seniority, which in extreme cases may amount to two steps in their grade.

(c) In that respect the applicant's case is, as the Commission rightly points out, different from that of the applicant in the case of Williams (Case 9/81 ( 3 )). By contrast with the present case, that case concerned the fact that members of staff in a newly established institution of the Communities were recruited on different terms. New officials recruited from outside the Communities were appointed on the basis of internal classification rules, which did not exist in that form in other Community institutions. The applicant, who was recruited from another Community institution and was transferred in his existing grade and later promoted, was classified in accordance with Article 46 of the Staff Regulations. Since the officials recruited thus entered the service of the Communities under different conditions, the Court held that the defendant Appointing Authority's reliance upon Article 46 as justification for the less-favourable treatment of the applicant was unlawful, that article being compatible with the principle of equal treatment only where careers were subject to uniform criteria from the outset. Consequently, it cannot be inferred from that judgment that Article 46 may not, for reasons of equal treatment, be applied to officials who are appointed to a higher category following their participation in a competition.

2.2. The applicant's claims in relation to the evaluation of his experience

Since, according to the view put forward here, the classification of the applicant in the first step of Grade A 7 in accordance with the classification criteria applicable to officials changing category is valid, the remaining claims connected with the reassessment of the applicant's relevant experience need be examined only on a subsidiary basis and in brief. In that regard, the applicant asks the Court to declare that his experience from the date of the award of his university degree should be fully taken into account and, in the alternative, that the defendant should be ordered to reclassify him, taking into account that view of the law.

As the Court has emphasized inter alia in Blomefield (Case 190/82 ( 4 )), the Appointing Authority has, by virtue of the second paragraph of Article 32 of the Staff Regulations, a wide margin of discretion covering all matters which may be relevant to the recognition of previous experience of officials appointed, as regards both the nature and duration of such experience and the extent to which it is related to the requirements of the post to be filled. According to consistent decisions regarding the exercise of that discretion, the Court may not place itself in the position of the Appointing Authority. If the Court were to uphold the applicant's claim and take the view that his seniority ought to have been determined in accordance with Article 32 of the Staff Regulations, then, notwithstanding the dismissal of the rest of the action, the classification would have to be annulled and the competent authority would have to reassess the applicant's experience.

3. In conclusion, however, I suggest that the claim should be dismissed as unfounded and that the parties should be ordered to bear their own costs in accordance with Articles 69 (2) and 70 of the Rules of Procedure.

( *1 ) Translated from the German.

( 1 ) Judgment of 12 July 1984 in Case 17/83, Angelidis v Commission, [1984] ECR 2907.

( 2 ) Opinion delivered on 21 June 1984 in Case 227/83, Moussis , v Commission, [1984] ECR 3133, 3147.

( 3 ) Judgment of 6 October 1982 in Case 9/81, Williams v Court of Auditors, [1982] ECR 3301.

( 4 ) Judgment of 1 December 1983 in Case 190/82, Blomefield v Commission, [1983] ECR 3981.