JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

16 October 1996

Case T-378/94

Josephus Knijff

v

Court of Auditors of the European Communities

‛Officials — Temporary staff engaged in consultation with national audit institutions — Application of the rules concerning classification in grade’

Full text in French II-1341

Application for:

annulment of the decision of 9 February 1994 rejecting the applicant's request for amendment of his classification, and of the decision of 29 August 1994 rejecting the complaint lodged by the applicant.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant has been employed by the Court of Auditors as a member of the temporary staff since 15 July 1986. His first contract was subject to rules specific to that institution allowing national civil servants to be engaged, in consultation with the national audit institutions (NAI), as members of the temporary staff. Under those rules, he was classified in Grade A 4, step 4. As they stood at the material time, the mies limited the duration of contracts offered on that basis to four years (a two-year contract, renewable once) and the applicant's contract thus expired on 14 July 1990.

From 15 July 1990 to 12 October 1990 the applicant was employed as a member of the auxiliary staff of the Court of Auditors.

On 17 September 1990, the Court of Auditors appointed a successor to the applicant, engaged as a Netherlands ‘NAI’ employee.

The applicant passed an internal selection procedure in the Court of Auditors for the recruitment of a temporary principal administrator, whereupon the Court of Auditors sought the consent of the Netherlands NAI, from the which the applicant was seconded, before offering him a five-year contract. In its letter the Court of Auditors made it clear that the post in question had no connection with the ‘post reserved for a Netherlands national’.

Having obtained the consent of the Netherlands NAI, the Court of Auditors, by letter of 12 October 1990, offered the applicant a new post as a member of the temporary staff for a period of five years: The offer stated that ‘[the applicant's] salary will be calculated by reference to classification in Grade A 5, step 3’. On the same date the applicant signed a contract to that effect.

The applicant did not lodge a complaint against his classification under that contract within the period prescribed in the Staff Regulations. However, the applicant, in view of supervening events, submitted requests to the appointing authority after the expiry of that period for review of that classification, followed by a complaint against the rejection of his requests. He argued, essentially, that he was entitled to be graded in accordance with the mies applicable to ‘NAI’ staff, not the ordinary rules. Following that pre-litigation procedure, the applicant brought a first action before the Court of First Instance seeking, essentially, annulment of the various decisions of the Court of Auditors refusing to uphold his request for classification.

The first action was dismissed by the Court of First Instance as manifestly inadmissible by order of 14 July 1993 in Case T-55/92 [1993] ECR II-823 (Knijff I) .

In the reply lodged in Knijff I, the applicant relied, as a second new factual ground for requesting a review of his classification, on the fact that he discovered, in the course of the procedure before the Court of First Instance, Decision 85/5 of the Court of Auditors of 7 February 1985 concerning the classification in grade and step of temporary staff from national audit institutions and recruited to posts categorized by the budgetary authorities as temporary (‘Decision 85/5’). However, as the Court of First Instance found in paragraph 25 of its order, the applicant did not state that he had submitted an application for reclassification on the basis of that discovery.

Following the order in Knijff I, on 12 October 1993 the applicant submitted a further request for reclassification, based on die discovery of Decision 85/5, in which he asked the appointing authority to ‘reconsider [his] classification in accordance with the criteria of Decision 85/5’.

That request was rejected as inadmissible and unfounded by decision of 9 February 1994. The applicant lodged a complaint against that decision, which was rejected as inadmissible and unfounded by decision of 29 August 1994.

Admissibility

Formal requirements

Pursuant to the first paragraph of Article 19 of the EC Statute of the Court of Justice, applicable to the Court of First Instance by virtue of the first paragraph of Article 46 of the same statute, and Article 44(l)(c) of the Rules of Procedure of the Court of First Instance, every application must state the subject-matter of the proceedings and contain a summary of the pleas in law on which the application is based. In order to guarantee legal certainty and sound administration of justice it is necessary, in order for an action to be admissible under the aforementioned provisions, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (paragraph 18).

See: T-85/92 De Hoe v Commission [1993] ECR II-523, para. 20

In this case the application indicates, with sufficient clarity, that the action seeks annulment of the decisions by which the appointing authority refused to change the application classification. It is clear from the application that the applicant is putting forward, for that purpose, two pleas in law, the first alleging breach of the classification rules laid down in Decision 85/5 and the second breach of the duty to have regard for the welfare of officials and of the principle of sound administration. Finally, the reasoning on which he bases those pleas is sufficiently clear to enable the defendant to put forward its defence and the Court to exercise judicial review (paragraph 19).

Consistency of the complaint with the application

Although the forms of order sought in the application may contain only heads of claim based on the same matters as those relied on in the complaint, those heads of claim may nevertheless, before the Community judicature, be developed by the submission of pleas and arguments not necessarily appearing in the complaint but closely linked to it (paragraph 21).

See: 242/85 Geist v Commission [1987] ECR 2181, para. 9

The administration is also required, at the pre-litigation stage, not to inteipret the complaints restrictively but, on the contrary, to consider diem with an open mind (paragraph 21).

See: 33/88 Del Amo Martinez v Parliament [1989] ECR 689; T-496/93 Allo v Commission [1995] ECRSC II-405; T-376/94 Onen v Commission [1996] ECRSC II-401, para. 30

The Court of First Instance considers, on reading the applicant's complaint with an open mind, as required by the case-law, and in the light of the request tliat preceded it, that the rule as to consistency between the complaint and the application is satisfied (paragraph 22).

Substance

The first plea: infringement of Decision 85/5

The applicant claims, essentially, that he is entitled to the classification laid down for a person of his experience by Decision 85/5 and that the appointing authority infringed that decision by grading him in accordance with the ordinary rules.

Decision 85/5 is concerned solely with the special conditions for temporary staff recruited in consultation with an NAI (NAI staff), as indicated in the third reference in the preamble to that decision, which specifically mentions the decision of the Court of Auditors of 27 January 1983 laying down the principles governing the selection and engagement of NAI staff (Annex 27 to the defence) (paragraph 34).

Those special conditions for NAI staff differ from the ordinary rules for the classification of temporary staff by reason, first, of the features of the recruitment procedure and, secondly, of the duration of the contracts provided for. It is also apparent from a number of documents produced by the Court of Auditors that it was prepared to accept only one NAI employee from each Member State under the special conditions laid down in particular in Decision 85/5 (paragraphs 35 and 36).

In view of those specific conditions applicable to NAI staff, Decision 85/5 did not apply to the contested decision since the contract concluded on 12 October 1990 between the appointing authority and the applicant displays none of those characteristics. First, it is common ground that the contract in question was offered to the applicant following an internal selection procedure and not in accordance with the procedure laid down by the conditions applicable to NAI staff. Secondly, the contract in question was concluded for a period of five years, whereas contracts covered by the conditions applicable to NAI staff are limited to two years. Thirdly, it is also common ground that the post reserved for the Netherlands NAI employee had already been occupied by someone else since 17 September 1990. Fourthly, since his contract as an NAI employee had already been renewed in 1988, the applicant was no longer entitled, on 12 October 1990, to a further renewal, in view of the rules in force at that time (paragraph 37).

The foregoing findings are not affected by the fact that the Court of Auditors sought and obtained authorization from the Netherlands NAI before offering the applicant his contract of 12 October 1990. Since the contract in question displays none of the characteristics of a contract covered by the conditions applicable to NAI staff, die mere fact of obtaining the consent of the NAI cannot confer on the applicant the status of an NAI employee. Furthermore, it is clear from the second paragraph of the letter of 18 September 1990 that the post offered to the applicant had no connection with the post reserved for a Netherlands NAI employee (paragraph 38).

The second plea in law: breach of the duty to have regard for the welfare of officials and of the principle of sound administration

The applicant claims that the breach of the duty to have regard for the welfare of officials and of the principle of sound administration derives from the breach of Decision 85/5. However, it is clear from the examination of the first pleas in law that that argument must also be rejected. In so far as his argument implies that that breach derives from a classification contrary to of Decision 85/5, it need merely be pointed out that he has not established that any error of classification was committed. In any event, Üiat argument also fails because Decision 85/5 is not applicable to the applicant's situation (paragraph 42).

Operative part:

The application is dismissed.