Judgment of the Court (Fourth Chamber) of 23 October 1986. - M. Hamai v Court of Justice of the European Communities. - Officials - Apppointment, classification in grade. - Case 92/85.



European Court reports 1986 Page 03157



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - APPOINTMENT - CLASSIFICATION IN GRADE - EQUAL TREATMENT - ABSENCE

( STAFF REGULATIONS OF OFFICIALS , ARTS . 5 ( 3 ) AND 31 ( 2 ))

Parties

IN CASE 92/85

M . HAMAI , AN INTERPRETER IN THE INTERPRETATION DIVISION OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES , REPRESENTED AND ASSISTED BY G . VANDERSANDEN , OF THE BRUSSELS BAR , 38 AVENUE DES KLANWAERTS , 1050 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . BIWER , 8 RUE ZITHE , BP 1107 , - 1011 LUXEMBOURG ,

APPLICANT ,

V

COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES , REPRESENTED BY F . HUBEAU , HEAD OF THE PERSONNEL DIVISION , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S OFFICE , ASSISTED BY A . VANDENCASTEELE , AVOCAT , 341 , AVENUE LOUISE , 1050 BRUSSELS ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMPLAINTS COMMITTEE OF THE COURT OF 13 DECEMBER 1984 REJECTING THE COMPLAINT SUBMITTED BY THE APPLICANT SEEKING HIS CLASSIFICATION , ON APPOINTMENT AS A PROBATIONARY OFFICIAL , IN GRADE L/A 6 , WITH ADDITIONAL SENIORITY IN STEP EQUAL TO THAT GRANTED TO HIS COLLEAGUES IN THE PAST ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 5 APRIL 1985 , MR HAMAI , AN OFFICIAL IN GRADE L/A 7 IN THE INTERPRETATION DIVISION OF THE COURT OF JUSTICE , BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION ADOPTED ON 13 DECEMBER 1984 BY THE COMPLAINTS COMMITTEE OF THE COURT OF JUSTICE REJECTING THE COMPLAINT SUBMITTED BY HIM SEEKING HIS CLASSIFICATION IN GRADE L/A 6 WITH ADDITIONAL SENIORITY IN STEP IN THAT GRADE .

2 THE APPLICANT STATES THAT HE WORKED AS AN INTERPRETER AT THE COMMISSION FROM 1973 TO 1977 , REACHING GRADE L/A 7 , STEP 2 ; AFTER LEAVING THAT INSTITUTION HE CONTINUED TO WORK AS A FREE-LANCE INTERPRETER FOR THE COMMUNITY INSTITUTIONS AND OTHER EMPLOYERS UNTIL 1980 , WHEN HE BEGAN TO WORK AS A FREE-LANCE INTERPRETER AT THE COURT OF JUSTICE . ON 20 JANUARY 1982 , HE ACCEPTED A CONTRACT FOR A FIXED PERIOD AS A MEMBER OF THE TEMPORARY STAFF IN GRADE L/A 7 , STEP 3 , ALTHOUGH HE APPLIED TO BE RE-CLASSIFIED IN GRADE L/A 6 . ON 15 OCTOBER 1983 HE SENT A LETTER TO THE REGISTRAR OF THE COURT OF JUSTICE SEEKING RE-CLASSIFICATION IN GRADE L/A 6 , IN VIEW OF THE DEPARTURE OF A DUTCH-SPEAKING COLLEAGUE WHO HAD HELD THAT GRADE . NO REPLY WAS RECEIVED TO THAT LETTER .

3 ON 17 NOVEMBER 1983 , VACANCY NOTICE NO CJ 117/82 WAS PUBLISHED CONCERNING A POST OF FRENCH-LANGUAGE INTERPRETER AT THE COURT OF JUSTICE ; IT STATED THAT ' THE POST WILL BE FILLED AT GRADE L/A 7 EXCEPT IN THE CASE OF TRANSFER OF AN OFFICIAL CLASSIFIED IN GRADE L/A 6 ' . THE APPLICANT SUBMITTED HIS CANDIDATURE , BUT ON 9 JANUARY 1984 THE VACANCY NOTICE IN QUESTION WAS REPLACED BY A SECOND NOTICE , NO CJ 117/82 A , WHICH ENVISAGED APPOINTMENT AT L/A 6 OR L/A 7 . FOLLOWING THE PUBLICATION ON 19 JANUARY 1984 OF NOTICE OF INTERNAL COMPETITION NO CJ 117/82 , A COMPETITION BASED ON QUALIFICATIONS AND TESTS FOR THE APPOINTMENT IN GRADE L/A 6 OR GRADE L/A 7 OF A FRENCH-LANGUAGE INTERPRETER , THE APPLICANT , THE ONLY CANDIDATE IN THAT COMPETITION , IN WHICH HE WAS SUCCESSFUL , WAS INFORMED BY A LETTER FROM THE REGISTRAR OF THE COURT OF JUSTICE DATED 24 MAY 1984 THAT HE HAD BEEN APPOINTED ON 16 MAY 1984 AS A PROBATIONARY OFFICIAL WITH EFFECT FROM 1 JUNE 1984 AND CLASSIFIED IN GRADE L/A 7 , STEP 4 .

4 FINALLY , THE APPLICANT STATES THAT HE SUBMITTED A REQUEST FOR RE-CLASSIFICATION TO THE APPOINTING AUTHORITY ON 21 JUNE 1984 AND SUBMITTED A COMPLAINT IN THE SAME TERMS ON 9 AUGUST 1984 UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS ; HE MADE FURTHER SUBMISSIONS IN A MEMORANDUM DATED 21 NOVEMBER 1984 . ON 13 DECEMBER 1984 , THE COMMITTEE OF THE COURT RESPONSIBLE FOR HEARING AND DETERMINING COMPLAINTS , ESTABLISHED BY THE COURT OF JUSTICE TO ACT ON BEHALF OF THE APPOINTING AUTHORITY , ADOPTED A DECISION REJECTING THE COMPLAINT AND THAT DECISION WAS COMMUNICATED TO MR HAMAI ON 8 JANUARY 1985 ; HE THEN BROUGHT THE PRESENT ACTION .

ADMISSIBILITY

5 THE DEFENDANT CONTENDS THAT THE APPLICATION IS INADMISSIBLE BECAUSE IT IS DIRECTED AGAINST THE DECISION OF 13 DECEMBER 1984 ADOPTED BY THE COMPLAINTS COMMITTEE OF THE COURT OF JUSTICE , WHICH DECISION MERELY CONFIRMS THE DECISION ADOPTED BY THE APPOINTING AUTHORITY ON 16 MAY 1984 APPOINTING THE APPLICANT AND CLASSIFYING HIM IN GRADE A/7 AND THEREFORE DOES NOT CONSTITUTE AN ACT ADVERSELY AFFECTING HIM WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS .

6 THE APPLICANT STATES THAT IN REALITY HE BROUGHT HIS ACTION IN ORDER TO CONTEST THE LAWFULNESS OF THE APPOINTING AUTHORITY ' S DECISION OF 16 MAY 1984 . HE EXPLAINS THAT THE REASON FOR WHICH THE ACTION IS FORMALLY BROUGHT AGAINST THE DECISION OF THE COMPLAINTS COMMITTEE OF 13 DECEMBER 1984 IS THAT UNLIKE THE DECISION OF 16 MAY 1984 , WHICH WAS LACKING IN CLARITY , THE FORMER CONTAINS A STATEMENT OF THE REAONS ON WHICH IT IS BASED , MAKING IT POSSIBLE TO DETERMINE ITS EXACT SCOPE , AND FOR THAT REASON , IN ACCORDANCE WITH THE JUDGMENT OF THE COURT OF 14 JULY 1981 ( CASE 145/80 MASCETTI V COMMISSION ( 1981 ) ECR 1975 ) IT ALONE MAY BE THE FORMAL SUBJECT-MATTER OF AN ACTION . THE APPLICANT ALSO STATES THAT ALTHOUGH HE INITIALLY REGARDED THE MEASURE ADOPTED ON 13 DECEMBER 1984 AS MERELY AN OPINION ON HIS COMPLAINT AND EXPECTED IT TO BE FOLLOWED BY A DECISION OF THE APPOINTING AUTHORITY HE SUBSEQUENTLY CAME TO THE CONCLUSION , WHEN NO SUCH DECISION WAS MADE , THAT THE DECISION OF 13 DECEMBER 1984 , BECAUSE OF THE TERMS IN WHICH IT WAS FORMULATED , THE STATEMENT OF THE REASONS ON WHICH IT WAS BASED AND THE DESCRIPTION AND COMPOSITION OF THE BODY WHICH ADOPTED IT , WAS MORE THAN A MERELY CONFIRMATORY MEASURE .

7 IT SHOULD BE NOTED THAT ALTHOUGH THE ACTION IS FORMALLY DIRECTED AGAINST THE DECISION OF THE COMPLAINTS COMMITTEE OF THE COURT OF JUSTICE OF 13 DECEMBER 1984 REJECTING THE APPLICANT ' S COMPLAINT , IT IS CLEAR FROM THE SUBMISSIONS AND ARGUMENTS PUT FORWARD IN THE APPLICATION THAT IT IS IN FACT DIRECTED AGAINST THE DECISION OF 16 MAY 1984 AGAINST WHICH THE COMPLAINT WAS MADE , NAMELY THE DECISION APPOINTING THE APPLICANT AS AN INTERPRETER IN GRADE L/A 7 WITH EFFECT FROM 1 JUNE 1984 . CONSEQUENTLY , THE ACTION IS ADMISSIBLE AND THE SUBSTANCE OF THE CASE MUST BE CONSIDERED .

SUBSTANCE OF THE CASE

FAILURE TO COMPLY WITH THE TERMS OF THE NOTICE OF COMPETITION AND BREACH OF THE PRINCIPLES OF THE PROTECTION OF LEGITIMATE EXPECTATIONS AND SOUND ADMINISTRATION

8 THE APPLICANT CLAIMS FIRST OF ALL THAT BY APPOINTING HIM IN GRADE L/A 7 THE ADMINISTRATION FAILED TO COMPLY WITH THE TERMS OF THE NOTICE OF COMPETITION . HE CONSIDERS THAT BY REASON OF THE AMENDMENT MADE IN VACANCY NOTICE NO CJ 117/82 A , THE APPOINTING AUTHORITY LEFT OPEN THE POSSIBILITY OF APPOINTING HIM AT GRADE L/A 6 AND THAT THAT POSSIBILITY AMOUNTED TO AN OBLIGATION INASMUCH AS HE POSSESSED THE QUALIFICATIONS AND PROFESSIONAL EXPERIENCE REQUIRED FOR APPOINTMENT IN THAT GRADE . THE APPLICANT ALSO CONTENDS THAT HIS APPOINTMENT IN GRADE L/A 7 CONSTITUTES A BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATIONS ON THE GROUND THAT HE WAS ENTITLED TO EXPECT THAT HE WOULD BE APPOINTED AT GRADE L/A 6 SINCE CERTAIN OF HIS COLLEAGUES WITH EQUIVALENT OR SOMETIMES INFERIOR QUALIFICATIONS AND PROFESSIONAL EXPERIENCE WERE APPOINTED TO GRADE L/A 6 IN 1981 , HE HAD RECEIVED NO REPLY TO HIS LETTER OF 15 OCTOBER 1983 TO THE REGISTRAR IN WHICH HE ASKED TO BE RECLASSIFIED IN GRADE L/A 6 , HE HAD BEEN ASSURED BY HIS HEAD OF DIVISION THAT HE WOULD BE APPOINTED IN THAT GRADE AND , FINALLY , THE ADMINISTRATION DID NOTHING TO DISPEL HIS HOPES . THE APPLICANT FURTHER CLAIMS THAT THE ADMINISTRATION ACTED IN BREACH OF THE PRINCIPLE OF SOUND ADMINISTRATION INASMUCH AS IT DID NOT INDICATE THAT IT INTENDED TO ADOPT A NEW PRACTICE AND TO APPOINT OFFICIALS ONLY TO THE STARTING GRADE AND INASMUCH AS HIS CASE WAS ILL-SUITED TO SUCH A CHANGE IN PRACTICE HAVING REGARD TO HIS PROFESSIONAL QUALIFICATIONS , IN COMPARISON WITH THOSE OF HIS COLLEAGUES PREVIOUSLY CLASSIFIED IN GRADE L/A 6 .

9 THE DEFENDANT ADMINISTRATION CONTENDS THAT THE AMENDMENT MADE IN THE SECOND VACANCY NOTICE MERELY PERMITTED THE APPOINTING AUTHORITY TO MAKE AN APPOINTMENT IN GRADE L/A 6 BUT DID NOT REQUIRE IT TO DO SO . IT ALSO CONSIDERS THAT THE APPLICANT COULD NOT REASONABLY HAVE EXPECTED TO BE APPOINTED IN GRADE L/A 6 SINCE THE ASSURANCES GIVEN HIM BY HIS HEAD OF DIVISION DID NOT BIND THE APPOINTING AUTHORITY ITSELF , THE REGISTRAR ' S FAILURE TO REPLY TO HIS LETTER OF 15 OCTOBER 1983 COULD NOT BE INTERPRETED AS BEING FAVOURABLE TO HIS REQUEST AND THE FACT THAT THE APPLICANT ' S COLLEAGUES WERE APPOINTED IN GRADE L/A 6 IN 1981 DID NOT GIVE HIM ANY LEGITIMATE REASON TO BELIEVE THAT HE HIMSELF HAD A RIGHT TO BE APPOINTED TO GRADE L/A 6 , AS THE INTERPRETATION DIVISION WAS IN THE COURSE OF BEING SET UP AT THE TIME OF THEIR APPOINTMENT AND THE CIRCUMSTANCES WERE THUS DIFFERENT . FINALLY , THE DEFENDANT CONSIDERS THAT NO OBJECTION CAN BE MADE TO ITS CHANGE OF PRACTICE CONCERNING THE GRADE AT WHICH APPOINTMENTS ARE NOW MADE SINCE THE NEW PRACTICE IN THAT REGARD IS IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 31 OF THE STAFF REGULATIONS .

10 IT MUST BE POINTED OUT THAT THE AMENDMENT MADE IN THE SECOND VACANCY NOTICE CONCERNING THE GRADE IN WHICH APPOINTMENT WAS TO BE MADE , WHICH WAS REPEATED IN THE NOTICE OF COMPETITION , DID NOT IMPOSE ANY OBLIGATION ON THE APPOINTING AUTHORITY TO APPOINT THE APPLICANT IN GRADE L/A 6 . FURTHERMORE , NONE OF THE FACTS ON WHICH THE APPLICANT RELIES AS JUSTIFYING THE EXPECTATION WHICH HE CONSIDERS HE WAS LEGITIMATELY ENTITLED TO ENTERTAIN AS TO HIS APPOINTMENT IN GRADE L/A 6 ARE OF SUCH A NATURE AS TO ESTABLISH THE EXISTENCE OF A BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATIONS OR OF THE PRINCIPLE OF SOUND ADMINISTRATION . THE APPLICANT ' S SUBMISSIONS ON ALL THE FOREGOING POINTS MUST THEREFORE BE REJECTED .

BREACH OF THE PRINCIPLE OF EQUAL TREATMENT

11 THE APPLICANT CLAIMS THAT A NUMBER OF HIS FELLOW INTERPRETERS WERE APPOINTED PROBATIONARY OFFICIALS IN NOVEMBER 1981 AND ESTABLISHED IN AUGUST 1982 IN GRADE L/A 6 NOTWITHSTANDING THE FACT THAT THEIR QUALIFICATIONS AND PROFESSIONAL EXPERIENCE WERE AT BEST EQUIVALENT AND SOMETIMES INFERIOR TO HIS . HE REFERS TO THE REPORT DRAWN UP AT THE END OF HIS PROBATIONARY PERIOD , ACCORDING TO WHICH HIS KNOWLEDGE , HIS PROFESSIONAL EXPERIENCE AND THE QUALITY OF HIS WORK WERE SUPERIOR TO THOSE CORRESPONDING TO HIS GRADE , AND POINTS OUT THAT THE COMPLAINTS COMMITTEE ACCEPTED THAT HIS PROFESSIONAL EXPERIENCE AND CAPABILITY WERE EQUAL TO THOSE OF HIS COLLEAGUES CLASSIFIED IN A HIGHER GRADE . HE CLAIMS THAT IN ACCORDANCE WITH THE PRINCIPLE OF EQUAL TREATMENT HE OUGHT TO HAVE BEEN APPOINTED IN GRADE L/A 6 , SINCE A POST IN THAT GRADE WAS AVAILABLE IN THE DEPARTMENT .

12 THE DEFENDANT DOES NOT REFUTE THE APPLICANT ' S ALLEGATION TO THE EFFECT THAT HIS MERITS WERE AT LEAST EQUAL TO THOSE OF HIS COLLEAGUES . IT CONTENDS HOWEVER THAT IN 1981 IT WAS NECESSARY TO MAKE APPOINTMENTS IN GRADE L/A 6 SINCE THE INTERPRETATION DIVISION HAD JUST BEEN SET UP AND THOSE APPOINTMENTS WERE MADE FOR THE PURPOSE OF ORGANIZING IT ; THAT WAS NO LONGER THE CASE , IT SAYS , WHEN THE APPLICANT WAS APPOINTED .

13 THE DEFENDANT ' S ARGUMENT IN THAT REGARD CANNOT BE ACCEPTED . AS CAN BE SEEN FROM THE EVIDENCE BEFORE THE COURT , WHEN THE COMPETITION AT ISSUE TOOK PLACE ONLY SOME OF THE POSTS CREATED IN ORDER TO STAFF THE NEW INTERPRETATION DIVISION HAD BEEN FILLED , AND IT CANNOT THEREFORE BE SAID THAT AT THAT TIME THE DEPARTMENT WAS NO LONGER IN THE COURSE OF BEING ORGANIZED . FURTHERMORE , IT DOES NOT APPEAR THAT THE DEFENDANT CONSIDERED AT THAT TIME THAT THE ORGANIZATION STAGE WAS OVER AND THEREFORE DECIDED TO CHANGE ITS PRACTICE OF MAKING APPOINTMENTS IN GRADE L/A 6 . ON THE CONTRARY , IT APPEARS THAT THE APPOINTING AUTHORITY INTENDED TO MAINTAIN THAT PRACTICE IF THERE WERE SUITABLY QUALIFIED CANDIDATES ; THAT IS CLEAR FROM THE FACT THAT VACANCY NOTICE NO CJ 117/82 WAS REPLACED BY VACANCY NOTICE NO CJ 117/82 A PRECISELY IN ORDER , INTER ALIA , TO PROVIDE EXPRESSLY FOR THE POSSIBILITY OF APPOINTING AN OFFICIAL IN GRADE L/A 6 , AS WAS ALSO PROVIDED FOR BY THE SUBSEQUENT NOTICE OF COMPETITION . IT SHOULD ALSO BE POINTED OUT THAT THE APPLICANT HAD BEEN A MEMBER OF THE TEAM OF INTERPRETERS SINCE 1980 EVEN THOUUGH HE WAS UNABLE TO TAKE PART IN THE COMPETITION HELD IN 1981 AND SO BECOME AN ESTABLISHED OFFICIAL .

14 CONSEQUENTLY , THE APPOINTING AUTHORITY SHOLD HAVE EXERCISED ITS DISCRETION UNDER ARTICLE 31 ( 2 ) OF THE STAFF REGULATIONS REGARDING THE GRADE IN WHICH THE SUCCESSFUL CANDIDATES IN THE COMPETITION IN WHICH THE APPLICANT TOOK PART COULD BE APPOINTED AND SHOULD HAVE OBSERVED THE PRINCIPLE OF EQUAL TREATMENT LAID DOWN IN ARTICLE 5 OF THE STAFF REGULATIONS OF OFFICIALS AND IN THE CASE-LAW OF THE COURT .

15 AS THE APPLICANT CLAIMS , AND THE DEFENDANT DOES NOT DENY , IT IS CLEAR FROM THE EVIDENCE THAT THE QUALIFICATIONS AND PROFESSIONAL EXPERIENCE OF HIS COLLEAGUES WHO WERE APPOINTED IN 1981 IN GRADE L/A 6 WERE AT BEST EQUAL TO HIS . CONSEQUENTLY , THE DEFENDANT SHOULD HAVE APPOINTED THE APPLICANT IN THE SAME GRADE AS HIS COLLEAGUES APPOINTED PREVIOUSLY , NAMELY GRADE L/A 6 .

16 CONSEQUENTLY , THIS SUBMISSION IS WELL FOUNDED AND THE DECISION OF 16 MAY 1984 MUST BE ANNULLED IN SO FAR AS IT DID NOT APPOINT THE APPLICANT IN GRADE L/A 6 .

Decision on costs

COSTS

17 SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FOURTH CHAMBER )

HEREBY :

( 1 ) ANNULS THE DECISION ADOPTED BY THE APPOINTING AUTHORITY OF THE COURT OF JUSTICE OF 16 MAY 1984 IN SO FAR AS IT DID NOT APPOINT THE APPLICANT IN GRADE L/A 6 ;

( 2 ) ORDERS THE DEFENDANT TO PAY THE COSTS .