2.

In support of its objection, the Commission relies on a number of arguments relating to the various heads of the application. I shall therefore examine the admissibility of each head separately. The applicant's main complaint is about her seniority in Step 7. We know that in this regard the administration adopted 1 November 1977 as the starting date and that it reflected this view in Article 3 of the draft contract sent to Miss Mascetti on 19 April 1979, which was actually signed on 24 April 1979. The Commission treats the contract in question, as regards the part in which it determines the starting date for seniority in the step, as an act liable to have an adverse effect, on the basis of Article 90 of the Staff Regulations. According to this view, by sending the draft contract to the person concerned, the administration, it is maintained, took a decision regarding seniority in the step, liable to have an impact on the legal and financial position of the person concerned. As a result it was incumbent on Miss Mascetti, in order to protect her interests, to lodge a complaint against that decision in due time, in accordance with Article 90 of the Staff Regulations. On this aspect defence Counsel for the Commission points out that, even if it were to be admitted that the applicant's letter of 26 May 1979 constituted a complaint, the subsequent legal action — commenced on 13 June 1980 — would have tó be regarded as having been instituted too late; in fact the administration gave a negative reply to the said letter of 26 May 1979 in its notes of 10 August and 2 October 1979, and the applicant allowed more than eight months to elapse after the latter date before starting her legal action. In my opinion, however, the clause incorporated in the contract by the administration regarding the starting date for seniority in the step does not fulfil the necessary requirements to constitute an act liable to have an adverse effect, within the meaning of Article 90 of the Staff Regulations. This conclusion is arrived at by taking into account all the circumstances which preceded and followed signature of the contract. I have already pointed out that the first invitation made by the administration to Miss Mascetti to enter into a new contract of employment as a temporary servant was made in the letter of 23 March 1977, proposing that she be assigned to Category C, Grade 1, Step 7 with effect from 30 October 1976. Even though seniority in the grade and in the step was not specified, the starting date for such seniority must have been 30 October or earlier, otherwise the phrase “with effect from 30 October 1976” would be meaningless. The first contract was signed on 30 November 1978, adopting 1 December 1978 as the starting date for seniority in the grade and 1 September 1977 for seniority in Step 6. Five months later after protests from Miss Mascetti, which I assume were made orally in the absence of any documentary record, the administration reviewed its position and accepted 30 October 1976 as the starting date for seniority in the grade (that is to say the date already specified in the letter of 23 March 1977) and 1 November 1977 as the starting date for seniority in the step. This position on the part of the administration therefore appears to have been adopted within the framework of a series of contracts with the person concerned and as an amendment to the two previous offers. This uncertainty in the administration's conduct finds confirmation in the letter of 11 July 1979 in which the Ispra centre, instead of making a direct statement of its views as it had done in the earlier stages, informed Miss Mascetti that it had entrusted assessment of her requests to the appropriate officers of the Commission. Only in its later note of 10 August did the administration finally give grounds for its method of calculating her seniority in her step, indicating that the seniority acquired as at 30 November 1976 (the reference date for the decision to assign to former members of the establishment staff the new status of temporary servants — see Article 2 of Regulation No 2615/76 referred to above) could only start to run again from the time of effective resumption of duty. In these circumstances, I am of the opinion that the contractual clause relating to seniority in the step, viewed individually and on its own merits, was not such as to express a decision by the administration at that stage. In view of the circumstances surrounding the formulation of the clause in question, it could not be seen by the applicant as a final and unequivocal decision. Only at a later stage, that is to say when in its letter of 10 August 1979 (subsequently confirmed by the letter of 2 October) the administration informed Miss Mascetti of its reasons for not back-dating her seniority in Step 7 to 1 November 1977, was it possible to regard a decision as having been taken, on the basis of which Miss Mascetti was in a position effectively to prepare her defence, initially by means of the complaint of 7 November and subsequently by means of a legal action. Furthermore, even if the adverse decision were to be referred back to the date of the proposed contract, no grounds whatsoever for the decision had been given at that time. The grounds were only given in the letters of August and October 1979 which were, from this point of view, of essential importance. In fact, only those letters provided the employee with an exact idea of the significance of the position adopted by the administration and enabled her to assess the appropriateness of resorting to the means of defence provided for by the Staff Regulations. In this respect I would point out that a decision of the Court contains a statement that “the purpose of the duty to state the grounds on which a decision is based is both to permit the official concerned to determine whether the decision is defective making it possible for its legality to be challenged ...” (judgment of 28 May 1980 in Joined Cases 33 and 75/79, Kuhner ν Commission of the European Communities [1980] ECR 1677, in particular paragraph 15 of the decision); in this way it has been recognized that there exists a necessary correlation between the giving of grounds in which the act is based and the possibility of evaluating its effective scope, with a view to recourse to the appropriate means of defence. Moreover, in its judgment of 20 November 1980 in Case 806/79, Gerinv Commission of the European Communities [1980] ECR 3515, the Court recently expressed very clear views on the need for grounds to be given why a decision may be regarded as “an act adversely affecting” the person concerned in accordance with the Staff Regulation. In that case it was a question of determining whether a printed form, completed by hand, originating from the administration and bearing the phrase “your son (name of child) has not been regarded as a dependent child since 1 January 1978” could be regarded as an act adversely affecting an official. The Court decided that it could not, observing that the form of words used was laconic and devoid of any statement of reasons; in the same case, however, it acknowledged that a later decision, for which the grounds were given, was an act liable adversely to affect the person concerned. This view is without doubt founded on the fact that the duty to state the grounds on which acts which may be prejudicial to the rights of officials and servants are based is imposed by the second paragraph of Article 25 of the Staff Regulations and confirmed in Article 90 (1) thereof, but the principal merit of the dicta referred to above is the fact that they attributed to the statement of grounds the function of enabling an informed assessment to be made of the scope of each act and of the appropriateness of contesting it. If this argument is adopted, the letter sent by Miss Mascetti to the administration on 7 November 1979 — which, as we have seen, included inter alia a request for the commencement of her seniority in the step to be back-dated — must be regarded as a complaint, made within the relevant time-limit, against the administration's decision adversely affecting her contained in the letter of 10 August. The administration's letter of 2 October 1979 therefore does not alter this fact, even if it is treated as a mere confirmation of the letter of 10 August; the complaint was in fact lodged before the expiry of three months from 10 August.