Judgment of the Court (Fifth Chamber) of 15 January 2002. - Alain Libéros v Commission of the European Communities. - Appeal - Possibility for the Judge-Rapporteur in the Court of First Instance to hear and determine a case sitting as a single Judge - Member of the temporary staff - Classification in grade - Professional experience. - Case C-171/00 P.



European Court reports 2002 Page I-00451



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1. Procedure - Procedure before the Court of First Instance - Possibility for a single Judge to hear and determine a case - Conditions - Cases raising issues as to the legality of an act of general application excluded - Definition of cases raising questions concerning the legality of an act of general application - Internal rules of an institution concerning the criteria applicable to appointment in grade and classification in step on recruitment - Included

(Rules of Procedure of the Court of First Instance, Arts 11(1), first para., and 14(2)(1) and (2)(a), and (3))

2. Officials - Recruitment - Appointment in grade and classification in step - Account taken of professional experience - Date taken as the dies ad quem for the calculation of the length of professional experience - Actual date of taking up duties - Rule for calculating length of professional experience applicable to members of the temporary staff different from that applicable to officials - Breach of the principle of equal treatment

(Staff Regulations, Arts 3 and 31)

Summary

1. Under the first paragraph of Article 11(1) of the Rules of Procedure of the Court of First Instance, cases before the Court are, in principle, heard by Chambers. It is by way of an exception that Article 14(2)(1) of the Rules of Procedure of the Court of First Instance provides that some specific categories of case, among them Community staff cases, may be heard and determined by the Judge-Rapporteur sitting as a single Judge where, having regard to the lack of difficulty of the questions of law or fact raised, to the limited importance of those cases and to the absence of other special circumstances, they are suitable for being so heard and determined.

However, Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance provides that it is not possible to delegate to a single Judge cases which raise issues as to the legality of an act of general application. That provision is an exception to the first exception and requires a return to the original principle. It cannot therefore be interpreted restrictively.

An act has general application, within the meaning of that provision, if it applies to an objectively determined situation and entails legal effects for categories of persons regarded generally and in the abstract.

A case raises a question relating to the legality of an act of general application and cannot therefore be delegated to a single Judge, to say the least, when an action for annulment is brought against such an act or when a plea of illegality is raised against it which is reasoned and substantiated by evidence. In that situation, a case may not be delegated to a single Judge. A case also raises an issue as to the legality of an act of general application when such a question is raised indirectly. In that case, the single Judge must, in accordance with Article 14(3) of the Rules of Procedure of the Court of First Instance, find that the conditions justifying delegation of the case are no longer satisfied and refer the case back to the Chamber.

Accordingly, the decision of an institution laying down the criteria applicable to classification in grade and step on recruitment, which applies to an objectively determined situation and entails legal effects for categories of persons regarded generally and in the abstract, must therefore be considered to be an act of general application within the meaning of Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance. Although internal measures adopted by the administration may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart without giving the reasons which led it to do so, which must be compatible with the principle of equal treatment. Such measures constitute an act of general application and the officials and other staff concerned may invoke their illegality in support of an action against the individual decisions taken on the basis of the measures.

( see paras 25-27, 31-33, 35-36 )

2. Under Article 3 of the Staff Regulations, the date on which the appointment of an official takes effect is not to be prior to the date on which he takes up his duties. Since an official may obtain training or exercise professional activities up to the day prior to the date on which he takes up his post, it is the latter date which should be taken as the dies ad quem for calculating the length of professional experience which may be taken into consideration for classification in grade.

Article 31 of the Staff Regulations should therefore be interpreted as meaning that, in so far as professional experience is taken into consideration for the purpose of classification in grade, the proper last date taken for calculating the length of professional experience must be the day preceding the day (dies ad quem) on which the official takes up his post.

It follows that a decision of a Community institution on the criteria applicable to appointment in grade and classification in step on recruitment, inasmuch as it establishes a dies ad quem corresponding to the date of the offer of employment, cannot be applicable to the recruitment of officials. The same conclusion applies in respect of recruitment of members of the temporary staff, inasmuch as the institution has said that that decision is to apply by analogy. Such a decision, in so far as it takes as the dies ad quem the date on which the offer of employment is made and not that on which the person concerned takes up his post, provides, for members of the temporary staff and without objective reason, a rule for calculating the length of professional experience taken into account which differs from that applicable to officials under Article 31 of the Staff Regulations. By so doing, it infringes the principle of equal treatment.

( see paras 46-49, 54 )

Parties

In Case C-171/00 P,

Alain Libéros, a member of the temporary staff of the Commission of the European Communities, resident in Brussels, Belgium, represented by M.-A. Lucas, avocat, with an address for service in Luxembourg,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Single Judge) of 9 March 2000 in Case T-29/97 Libéros v Commission [2000] ECR-SC I-A-43 and II-185, seeking to have that judgment set aside and the claims submitted at first instance allowed,

the other party to the proceedings being:

Commission of the European Communities, represented by J. Currall, acting as Agent, and by B. Wägenbaur, lawyer, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of: P Jann, President of the Chamber, A. La Pergola, L. Sévon, M. Wathelet and C.W.A.Timmermans (Rapporteur), Judges,

Advocate General: C. Stix-Hackl,

Registrar: H.A. Rühl, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 4 July 2001,

after hearing the Opinion of the Advocate General at the sitting on 22 November 2001,

gives the following

Judgment

Grounds

1 By application lodged at the Registry of the Court of Justice on 10 May 2000, Mr Libéros brought an appeal under Article 49 of the EC Statute and the corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice against the judgment of the Court of First Instance of 9 March 2000 in Case T-29/97 Libéros v Commission [2000] ECR-SC I-A-43 and II-185 (hereinafter the contested judgment) which dismissed his action for annulment of the Commission's decisions of 15 March 1996, establishing his definitive classification in Grade A 7, and of 5 November 1996, rejecting his complaint against that classification decision.

Relevant provisions and facts

Rules of Procedure of the Court of First Instance

2 Article 14(2) of the Rules of Procedure of the Court of First Instance, as amended by the decision of the Court of First Instance of 17 May 1999 to enable it to give Decisions in cases when constituted by a single Judge (OJ 1999 L 135, p. 92) provides:

1. The following cases, assigned to a Chamber composed of three Judges, may be heard and determined by the Judge-Rapporteur sitting as a single Judge where, having regard to the lack of difficulty of the questions of law or fact raised, to the limited importance of the case and to the absence of other special circumstances, they are suitable for being so heard and determined and have been delegated under the conditions laid down in Article 51:

(a) cases brought pursuant to Article 236 of the EC Treaty or Article 152 of the EAEC Treaty;

...

2. Delegation to a single Judge shall not be possible:

(a) in cases which raise issues as to the legality of an act of general application;

....

3 Article 14(2)(3) of the Rules of Procedure provides:

The single Judge shall refer the case back to the Chamber if he finds that the conditions justifying delegation of the case are no longer satisfied.

4 The first paragraph of Article 51(2) of the Rules of Procedure reads as follows:

The decision to delegate a case to a single Judge in the situations set out in Article 14(2) shall be taken, after the parties have been heard, unanimously by the Chamber composed of three Judges before which the case is pending.

Provisions applicable to the classification of officials

5 Article 31 of the Staff Regulations of Officials of the European Communities (hereinafter the Staff Regulations) provides:

1. Candidates thus selected shall be appointed as follows:

- officials in Category A or the Language Service:

to the starting grade of their category or service;

...

2. However, the appointing authority may make exceptions to the foregoing provisions within the following limits:

...

(b) in respect of other grades [grades other than A 1, A 2, A 3 and LA 3]:

- up to one-third of the appointments to posts becoming vacant;

- up to half the appointments to newly created posts.

Save in respect of Grade LA 3, this provision shall be applied by groups of six posts to be filled in each grade for the purpose of this provision.

6 By decision of 1 September 1983, the Commission laid down the criteria applicable to grade and step classification on recruitment (hereinafter the decision of 1 September 1983). Subject to the exceptions expressly laid down in Articles 1 and 5 of that decision, Article 5 provides that the decision is to apply by analogy to the engagement of temporary staff.

7 The first, second, third and sixth paragraphs of Article 2 of the version in force on 1 July 1995 of the decision of 1 September 1983, entitled Determination of grade and step upon recruitment, state as follows:

The appointing authority shall appoint the probationer official in the starting grade of the career bracket for which he has been recruited.

The minimum period of professional experience for classification in the first step of the starting grade of each career bracket is as follows:

- 12 years for Grades A 5 and LA 5

- 3 years for Grades A 7 and LA 7

...

Professional experience shall be assessed on the basis of the activities engaged in prior to the date when the offer is made ...

...

Subject to Article 2 of Annex I to this Decision, professional experience shall be calculated from the time when the candidate was awarded the first qualification giving access, pursuant to Article 5 of the Staff Regulations, to the category in which the post falls, and it must be of a level corresponding to that category.

8 The facts of the case are set out in the contested judgment as follows:

7 On 25 October 1993, the applicant submitted an application to the Commission in connection with a selection procedure for temporary staff. The selection notice for Unit 3 "Quality policy and certification and marking system for conformity" in Directorate B "Legislation and standardisation, telematics networks" of the "Industry" Directorate General (DG III) specified that the post in question was at level A 7/A 4.

8 On 17 October 1994, the Commission offered the applicant a post as a member of its temporary staff, explaining that he would carry out the duties of an administrator for a period of three years and would be classified "in Category A, Grade 7, Step 1 (subject to the confirmation of the Grading Committee which will determine [his] definitive classification in due course)".

9 The applicant accepted the Commission's offer on 14 November 1994 and, at the same time, stated that he was prepared to take up his post with the Commission on 1 July 1995.

10 On 23 June 1995, the applicant signed the contract of employment, dated 7 October 1994, under which he was employed to carry out the duties of administrator (first paragraph of Article 2) and classified in Category A, Grade 7, Step 1, with seniority in that step with effect from 1 July 1995 (Article 3).

11 On 30 August 1995, the applicant sent a note to the President of the Grading Committee requesting reclassification in Grade A 5 in view of the professional experience of fifteen years, six months and six days he had acquired by the date on which his contract of employment with the Commission was drawn up, 7 October 1994.

12 The Commission notified the applicant of a supplement to the contract of employment dated 15 March 1996, fixing his definitive classification in Grade A 7, Step 3, with seniority in that step from 1 July 1995 (hereinafter "the decision of 15 March 1996").

13 On 28 March 1996 the applicant lodged a complaint with the Commission under Article 90(2) of the Staff Regulations against the decision of 15 March 1996 in so far as it did not respond to his request for reclassification in Grade A 5 with the corresponding additional seniority allowance. The complaint was registered in the General Secretariat of the Commission on 23 April 1996.

14 By decision of 5 November 1996, the complaint was expressly rejected (hereinafter "the decision of 5 November 1996"). The applicant acknowledged receipt of that decision on 11 November 1996. The decision states that, in accordance with the second and sixth paragraphs of Article 2 of the decision of 1 September 1983, the diploma taken into account for calculating the applicant's experience was the Master's in Economic and Social Administration he obtained in June 1983 and that, consequently, his experience was calculated from June 1983 to October 1994, the date of the letter containing the offer of employment, amounting to eleven years four months. The decision of 5 November 1996 also mentions that the appointing authority - in order to comply with the principle established by the Court of First Instance in its judgment of 5 October 1995 in Alexopoulou v Commission (T-17/95 [1995] ECR-SC I-A-227 and II-683), under which it is permitted, in exceptional circumstances, to recruit to a higher career bracket, in particular where the specific needs of the department require the recruitment of a specially qualified person or where the person recruited has exceptional qualifications - re-examined the applicant's file but, finding that there were no grounds for altering its assessment, therefore decided that, in this case, no such exception should be made.

The procedure before the Court of First Instance and the contested judgment

9 In accordance with the provisions of Article 14(2)(1) and the first paragraph of Article 51(2) of the Rules of Procedure of the Court of First Instance, on 9 November 1999 the First Chamber of the Court of First Instance delegated the case to the President of the Court sitting as single Judge.

10 Mr Libéros put forward three pleas in support of his action. The first plea alleged infringement of the second paragraph of Article 2 of the decision of 1 September 1983. The second, put forward in the alternative, alleged that that decision was unlawful in so far as it states that the first paragraph of Article 2 applies to members of the temporary staff recruited under Article 2(a) of the Conditions of employment of other servants of the European Communities. In point 19 of his reply before the Court of First Instance, Mr Libéros stated that the alleged illegality also applied to the third paragraph of Article 2 of the decision of 1 September 1983, the provision concerning the date on which (dies ad quem) professional experience is assessed. In the first limb of the third plea, submitted in the further alternative, he claimed that the decisions of 15 March and 5 November 1996 were insufficiently reasoned and, in the second limb, he alleged infringement of Article 31(2) of the Staff Regulations.

11 The Court of First Instance first of all ruled on the admissibility of the action. In paragraphs 29 to 34 of the contested judgment, it held that the action had been lodged out of time, but considered that Mr Libéros had made an excusable error by taking as the time from which the period started to run the date on which he lodged his complaint with the General Secretariat of the Commission. The applicant had relied on Administrative Notices No 635 of 16 July 1990, published by the Commission, regarding the procedure for handling requests and complaints under Article 90 of the Staff Regulations and the method for calculating time-limits, which were confusing, and also on incorrect information provided by an official of DG IX. Consequently, the action was declared admissible.

12 Ruling on the substance of the applicant's action, it considered whether, having regard to the circumstances of the case, Article 2 of the decision of 1 September 1983, as applied individually in the present case by the Commission, which takes into account only the professional experience gained prior to the offer of employment, infringes the aims of Article 31 of the Staff Regulations.

13 In that regard, the grounds of the judgment of the Court of First Instance read as follows:

48 The applicant states that his professional experience should have been assessed not on the date on which the offer of employment was made, but on the date on which the contract of employment took effect, 1 July 1995. It is therefore necessary to examine whether, having regard to the circumstances of the case, Article 2 of the decision of 1 September 1983, as applied individually in the present case by the Commission, which takes into account only the professional experience gained prior to the offer of employment, infringes the aims of Article 31 of the Staff Regulations.

49 In that regard, it is apparent from the judgment of the Court of First Instance in Monaco v Parliament (T-92/96 [1997] ECR-SC I-A-195 and II-573, paragraph 46), that the "exercise of the discretion conferred on the appointing authority by Article 31(2) of the Staff Regulations may, according to the case-law, be regulated by internal decisions, such as the new internal directives issued by the Parliament. There is nothing in principle to prohibit that authority from establishing, by an internal decision of a general nature, rules for the exercise of the discretion conferred on it by the Staff Regulations. ... Such an internal directive must be regarded as a guiding rule of conduct which the administration imposes on itself and from which it may not depart without stating the reasons for doing so, since otherwise the principle of equal treatment would be infringed ..."

50 The decision of 15 March 1996 applies an internal decision of a general nature, namely the decision of 1 September 1983 which expressly states, in the third paragraph of Article 2, the date chosen for the purpose of calculating the professional experience taken into account for classification, namely the date on which the offer of employment is made.

51 That rule of conduct is consistent with the purposes of the Staff Regulations, both on administrative and substantive grounds.

52 First, it is not possible to take account, when making an offer of employment, of any professional experience that may be acquired in the period between the date on which that offer is made and the date on which the candidate takes up his post.

53 Second, there is normally very little time between the offer of employment being made and its being sent to the candidate or between its being sent and the offer being accepted or refused.

54 Third, the date on which the contract is signed and the date on which the person concerned takes up his post are not generally very far apart.

55 Last, to require the institution to review the terms of the offer of employment after it has been accepted by the person concerned in order to take account of professional experience acquired between the date on which the offer was made and the date on which he actually takes up his post would allow him to postpone taking up his post in order to obtain a better classification, without objective reason or the possibility of effective control by the institution.

56 As for the applicant's argument regarding the judgment in Joined Cases T-18/89 and T-24/89 Tagaras v Court of Justice [1991] ECR II-53, it should be pointed out that the circumstances of the present case are different from those which gave rise to that judgment. In that case, there was not, in particular, any general decision relating to appointment in grade and classification in step on recruitment. Furthermore, the defendant had taken the date on which the candidate submitted his application - a different and much earlier date than the one taken by the Commission in the present case - in order to evaluate the professional experience of the person concerned. That judgment is therefore irrelevant to the present case.

57 The Commission was therefore entitled, in its decision of 15 March 1996, to fix the date on which the offer of employment was made as the final date for taking into account professional experience, in accordance with its decision of 1 September 1983.

14 The Court of First Instance therefore dismissed the action brought by Mr Libéros and ordered each of the parties to pay their own costs.

Appeal

15 Mr Libéros claims that the Court of Justice should set aside the contested judgment, allow the claims he submitted at first instance and order the Commission to pay the costs.

16 The Commission contends that the Court should dismiss the appeal and order Mr Libéros to pay the costs.

17 Mr Libéros puts forward three grounds of appeal. The first ground alleges infringement of Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance. The second alleges infringement of the second paragraph of Article 2 of the decision of 1 September 1983, and of Articles 31 and 32 of the Staff Regulations, which are applicable to temporary staff by virtue of Article 5 of the decision. The third alleges infringement of the obligation to state the grounds of judgments.

The first ground of appeal

18 The first ground is subdivided into two limbs.

19 In the first limb of his first ground of appeal, Mr Libéros maintains that it was wrong for the case to be heard by the Judge-Rapporteur sitting as single judge since the admissibility of the action raised the question of the legality of the Administrative Notices published by the Commission concerning the procedure for initiating and investigating requests and complaints under Article 90 of the Staff Regulations.

20 By the second limb, he maintains that it was wrong for the case to be heard by the Judge-Rapporteur sitting as a single Judge although the action raised the question of the legality of the third paragraph of Article 2 of the decision of 1 September 1983, which provides, in particular, that professional experience shall be assessed on the basis of the activities engaged in prior to the date when the offer is made.

21 The second limb should be examined first.

22 According to Mr Libéros, the Court of First Instance acknowledged, in paragraph 50 of the contested judgment, that the decision of 1 September 1983 is an internal decision of a general nature and, in paragraphs 48 to 51 of the judgment, held that the plea of illegality raised by Mr Libéros was unfounded, and dismissed the application which he had brought before the Court.

23 He maintains in that regard that Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance should be interpreted broadly. It is not necessary to determine whether or not it is a legislative measure, since the text does not do so. He also points out that the provision referred to does not constitute an exception to a principle, in which case it should be interpreted strictly, but an exception to an exception to a principle. In the light of that fact, it should be interpreted in the same way as the principle, that is to say broadly. Finally, he claims that the objective of Article 14 of the Rules of Procedure is to allow a Judge to sit as a single Judge in cases which are suitable for being so heard and determined by reason, in particular, of their limited importance. That objective provides a reason for not assigning to a single Judge cases which call in question the legality of decisions which apply to numerous addressees, even if they are internal administrative decisions.

24 In respect of this limb, the Commission points out that, in paragraph 48 of the contested judgment, the Court stated clearly and unequivocally that Mr Libéros was challenging a decision of individual application and not the legality of an act of general application. The Commission maintains, furthermore, that the decision of 1 September 1983 does not constitute an act of general application within the meaning of Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance since it is a provision adopted by an administrative authority.

25 In that regard, it should be noted that, under the first paragraph of Article 11(1) of the Rules of Procedure of the Court of First Instance, cases before the Court are, in principle, heard by Chambers.

26 It is by way of an exception that Article 14(2)(1) of the Rules of Procedure of the Court of First Instance provides that some specific categories of case, among them Community staff cases, may be heard and determined by the Judge-Rapporteur sitting as a single Judge where, having regard to the lack of difficulty of the questions of law or fact raised, to the limited importance of those cases and to the absence of other special circumstances, they are suitable for being so heard and determined.

27 However, Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance provides that it is not possible to delegate to a single Judge cases which raise issues as to the legality of an act of general application. That provision is an exception to the first exception and requires a return to the original principle. It cannot therefore be interpreted restrictively.

28 The term act of general application has been interpreted by the Court of Justice and the Court of First Instance in connection with the application of Articles 230 EC and 249 EC. According to settled case-law, an act is regarded as being of general application if it applies to objectively determined situations and entails legal effects for categories of persons regarded generally and in the abstract (see, in particular, Joined Cases 789/79 and 790/79 Calpak and Società Emiliana Lavorazione Frutta v Commission [1980] ECR 1949, paragraph 9, and Case C-41/99 P Sadam Zuccherifici and Others v Council [2001] ECR I-4239, paragraph 24).

29 It is also apparent from that case-law that the general applicability of an act is not called into question by the fact that it is possible to determine more or less exactly the number or even the identity of the persons to whom it applies at any given time, as long as it applies to them by virtue of an objective legal or factual situation defined by the measure in question in relation to its purpose (Sadam Zuccherifici and Others v Council, cited above, paragraph 29).

30 In the interest of consistency, Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance should be interpreted in the light of that well-established case-law.

31 Accordingly, an act has general application, within the meaning of that provision, if it applies to an objectively determined situation and entails legal effects for categories of persons regarded generally and in the abstract.

32 As regards determining to what extent a case raises a question relating to the legality of an act of general application, it must be stated that that is the position, to say the least, when an action for annulment is brought against such an act or when a plea of illegality is raised against it which is reasoned and substantiated by evidence. In that situation, a case may not be delegated to a single Judge.

33 That may also be the position when, in the course of the proceedings, the question of the legality of an act of general application is raised indirectly. In that case, the single Judge must, in accordance with Article 14(3) of the Rules of Procedure of the Court of First Instance, find that the conditions justifying delegation of the case are no longer satisfied and refer the case back to the Chamber.

34 As regards the decision of 1 September 1983, referred to in the second limb of the first ground of appeal, it is a decision which, according to Article 1, concerns the classification in grades other than A 1, A 2, A 3 and LA 3 of officials appointed to posts falling within Annex 1-A to the Staff Regulations, excluding officials assigned to the JRC and the JET project and which, according to Article 5, applies by analogy to the engagement of temporary staff.

35 In a judgment concerning internal measures adopted by the administration, the Court of Justice has already held that, although those measures may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart without giving the reasons which led it to do so, which must be compatible with the principle of equal treatment. Consequently, the officials and other staff concerned may invoke their illegality in support of an action against the individual decisions taken on the basis of the measures (Joined Cases 181/86 to 184/86 Del Plato and Others v Commission [1987] ECR 4991, paragraph 10).

36 Accordingly, the decision of 1 September 1983, which applies to an objectively determined situation and entails legal effects for categories of persons regarded generally and in the abstract, must therefore be considered to be an act of general application within the meaning of Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance.

37 It should also be noted that, as is apparent from the written pleadings submitted by Mr Libéros to the Court of First Instance, the second plea alleged that the decision of 1 September 1983 was unlawful. Mr Libéros pointed out that fact in a letter dated 27 October 1999 addressed to the Court of First Instance which had invited him, in accordance with the first paragraph of Article 51(2) of its Rules of Procedure, to submit observations on the possibility of delegating the case to the Judge-Rapporteur sitting as a single Judge.

38 It is clear from all those considerations that, in so far as the Judge-Rapporteur, sitting as single Judge, heard and determined a case brought under Article 236 EC although that case raised a question relating to the legality of an act of general application, the Court of First Instance infringed Article 14(2)(2)(a) of its Rules of Procedure.

39 As the first ground of appeal is well founded, the contested judgment should be set aside and there is no need to examine the other grounds of appeal.

Substance

40 In accordance with Article 54 of the EC Statute and the corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice, since the state of the proceedings so permits, it is appropriate to give final judgment on Mr Libéros' claim for annulment of the decisions of 15 March and 5 November 1996.

41 The substantive issue concerns the determination of the length of professional experience which should be taken into consideration when recruiting temporary staff. More particularly, the decisive question is the date (dies ad quem) up to which that period should be calculated, since determination of the date which serves as the starting point of the period (dies a quo) is not in dispute.

42 Mr Libéros claims, first of all, that professional experience should be calculated in the same way, whether for the purpose of applying Article 31 or Article 32 of the Staff Regulations. He also maintains that, according to Community case-law and, in particular, to the judgment of the Court of First Instance in Tagaras v Court of Justice, cited above, it is the date on which the candidate takes up his post which should be used. The third paragraph of Article 2 of the decision of 1 September 1983, in providing that professional experience should be assessed on the basis of the activities engaged in prior to the date when the offer is made, infringes the Staff Regulations on that point. He therefore considers that, in his own case, it is the date on which he took up his post, 1 July 1995, which should have been taken as the dies ad quem for assessing the length of his professional experience.

43 In its defence before the Court of First Instance, the Commission acknowledges that the grade accorded to a member of the temporary staff on recruitment is determined in accordance with Article 2 of the decision of 1 September 1983. It maintains, however, that the choice of the date of the offer of employment for assessing the length of professional experience is fully justified because it is then that the conditions of employment of the member of staff are fixed. That criterion is also chosen for budgetary reasons and in order to ensure that the newly-recruited member of staff is not able, on his own initiative, to postpone the date on which he takes up his post in order to be recruited in a higher career bracket. Moreover, normally very little time elapses between the offer of employment being made and the actual recruitment of the member of staff. Finally, the Commission points out that Article 32 of the Staff Regulations and the case-law relating to it are not relevant to the present case, since that provision concerns classification in step, whereas the present case concerns classification in grade. It therefore considers that, in respect of Mr Libéros, it is the date of the offer of employment, 7 October 1994, which should be used.

44 In that regard it should be pointed out that, as is apparent from the documents submitted to the Court of First Instance, this question is raised in the context of Mr Libéros' recruitment to post reference 12T/III/93, Grade A 7/A 4. If Mr Libéros' argument were upheld, he could claim more than 12 years of professional experience and, under the second paragraph of Article 2 of the decision of 1 September 1983, request that his file be re-examined with a view to possible classification in Grade A 5.

45 It is important at the outset to note that, although Article 31 of the Staff Regulations does not expressly mention the term professional experience, it is nevertheless evident from settled case-law that the professional experience of a person recruited as an official is one of the factors which the appointing authority may take into consideration in order to determine his classification in grade, particularly in connection with the application of Article 31(2) of the Staff Regulations (see, to that effect, Case C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, paragraph 15, and Case C-155/98 P Alexopoulou v Commission [1999] ECR I-4069, paragraph 13).

46 Under Article 3 of the Staff Regulations, the date on which the appointment of an official takes effect is not to be prior to the date on which he takes up his duties. Since an official may obtain training or exercise professional activities up to the day prior to the date on which he takes up his post, it is the latter date which should be taken as the dies ad quem for calculating the length of professional experience which may be taken into consideration for classification in grade.

47 Article 31 of the Staff Regulations should therefore be interpreted as meaning that, in so far as professional experience is taken into consideration for the purpose of classification in grade, the proper last date taken for calculating the length of professional experience must be the day preceding the day (dies ad quem) on which the official takes up his post. It follows that, in that it establishes a dies ad quem corresponding to the date of the offer of employment, the third paragraph of Article 2 of the decision of 1 September 1983 cannot be applicable to the recruitment of officials.

48 It is necessary, however, to determine whether that conclusion also applies in respect of recruitment of a member of the temporary staff.

49 In that regard, it should be pointed out that, although the Conditions of employment of other servants of the European Communities do not lay down rules applicable to the classification in grade of temporary staff, the Commission nevertheless stated in Article 5 of the decision of 1 September 1983 that the decision was to apply to their engagement by analogy.

50 It must therefore be ascertained whether the third paragraph of Article 2 of the decision of 1 September 1983, which the Court of Justice has held, in paragraph 47 of this judgment, to be inapplicable in respect of officials, is also inapplicable to members of the temporary staff or whether the situation of temporary staff has particular features which justify continuing to apply that provision, that is to say, taking the date of the offer of employment as the dies ad quem for calculating the length of professional experience.

51 The Commission maintains that it is not possible, in particular for budgetary reasons, to take account, when making the offer of employment, of professional experience which may be acquired in the interval between the offer of employment and the date on which the candidate actually takes up his post. However, it must be pointed out that it was the Commission itself which, first, decided to treat members of the temporary staff in the same way as officials, second, states in its decision of 1 September 1983 that the minimum length of professional experience for classification in the first step of Grade A 5 is 12 years and, third, follows the practice of making offers of employment as members of the temporary staff which cover several career brackets at the same time. In the light of these factors, it was for the Commission to make proper provision with regard to the budget so as to take account of situations in which the professional experience acquired by a candidate between the date of the offer of employment and the date on which the post was taken up had to be taken into account in order to give him a different classification in grade from that which had been proposed in the offer of employment.

52 Nor can it be maintained that to take the date when the offer of employment is made is justified on the ground that, in principle, there is very little time between the offer of employment and the date on which the member of the temporary staff takes up his post. The alleged infrequency of certain situations cannot justify a difference in treatment as compared with that accorded to an applicant for a post as an official, who is entitled, under the Staff Regulations, to have professional experience acquired up to the date on which he takes up his post taken into consideration.

53 Lastly, it is incorrect to claim that, to require the institution to review the terms of the offer of employment after it has been accepted by the person concerned in order to take account of professional experience acquired between the time the offer is made and the time when he actually takes up his post, would allow him to postpone taking up his post in order to obtain a better classification without objective reasons or the possibility of effective control by the institution. The date on which he is to take up his post can be fixed in the offer of employment, of which it may consequently constitute an essential part. That would allow the institution to evaluate at the outset the professional experience which might need to be taken into consideration for the classification of the person concerned. The institution consequently has control over the date on which the candidate takes up his post and can also ensure that he adheres to that date.

54 It follows from the foregoing that, in so far as it takes as the dies ad quem the date on which the offer of employment is made and not that on which the candidate takes up his post, the third paragraph of Article 2 of the decision of 1 September 1983, read in conjunction with Article 5, provides, for members of the temporary staff and without objective reason, a rule for calculating the length of professional experience taken into account which differs from that applicable to officials under Article 31 of the Staff Regulations. By so doing, it infringes the principle of equal treatment which follows from the rule to which the Commission subjected itself by Article 5 of the decision.

55 Accordingly, the appellant's submission on the merits should be upheld and the decisions of 15 March and 5 November 1996 annulled.

Decision on costs

Costs

56 Under the first paragraph of Article 122 of the Rules of Procedure, where an appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to costs. Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since Mr Libéros has asked that the Commission be ordered to pay the costs, and the Commission has been unsuccessful, it must be ordered to pay not only its own costs but also all the costs incurred by Mr Libéros before the Court of First Instance and before the Court of Justice.

Operative part

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1. Sets aside the judgment of the Court of First Instance of the European Communities of 9 March 2000 in Case T-29/97 Libéros v Commission;

2. Annuls the decisions of the Commission of the European Communities of 15 March 1996, definitively classifying Mr Libéros in Grade A 7, and of 5 November 1996, rejecting his complaint against that classification decision;

3. Orders the Commission of the European Communities to pay all the costs of the proceedings before the Court of First Instance and the Court of Justice.