JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

21 October 1998

Case T-100/96

Miguel Vicente-Nuñez

v

Commission of the European Communities

‛Officials — Classification — Additional seniority in step — Professional experience and university education prior to recruitment’

Full text in French II-1779

Application for:

primarily, annulment of the Commission decision of 24 May 1995 revising the applicant's classification in step and fixing it at Grade A 7, Step 2, at 1 June 1997 rather than at Grade A 7, Step 3.

Decision:

Annulment in part; remainder of application dismissed.

Abstract of the Judgment

Between February 1976 and September 1986 the applicant worked at the Spanish Embassy in Brussels. From 1 December 1979 he carried out the duties of ‘head clerk’. In July 1982 the applicant obtained a degree after following a number of courses at the Institut Supérieur Saint-Louis in Brussels between 1977 and 1982.

The applicant joined the Commission in 1986 as an official in category B. He was subsequently successful in general competition CES/A/6/89, which was organised to constitute a reserve list of administrators in category A, Grades 7 and 6. In order to be admitted to the competition it was specified that candidates must ‘(a) have completed university studies leading to a degree ... or have at least five years' equivalent professional experience; (b) have at least five years' professional experience commensurate with the nature of the duties’.

The applicant was an appointed as an administrator by a decision of ‘appointment by way of transfer’ pursuant to Article 29(l)(c) of the Staff Regulations of Officials of the European Communities (Staff Regulations) and, by a decision adopted pursuant to Article 46 of the Staff Regulations, which does not permit professional experience acquired prior to joining the service to be taken into consideration, was classified in Grade A 7, Step 1, with effect from 1 June 1991. The applicant was assigned to a post which, according to vacancy notice COM/2430/90, required a university degree or equivalent professional experience.

On 10 February 1994 the Commission, in a communication relating to the judgment of the Court of First Instance of 28 September 1993 in Joined Cases T-103/92, T-104/92 and T-105/92 Baiwir and Others v Commission [1993] ECR II-987, requested officials in the same position as the applicants in that case to inform it so that their classification might be reconsidered. Where their classification was reviewed the financial effects would be calculated only from the date on which that judgment was delivered.

On 4 May 1994 the applicant requested a review of his classification. He claimed that all the professional experience at level A which he acquired before joining the Commission should be taken into consideration for the purposes of Article 32 of the Staff Regulations, with effect from 1 June 1991. On 17 June the grading committee informed the applicant that it had proposed that the appointing authority reclassify him, with effect from 1 June 1991, in Grade A 7, Step 1, with 12 months' seniority. The committee took the view that the applicant's professional experience could be taken into account only from the date on which he obtained his university degree. On 27 June the applicant replied to the classification committee, which then sought the opinion of the Commission's legal service, which on 18 October 1994 recommended a solution which was more favourable to the applicant, whereby part of his professional experience prior to acquiring his degree would be recognised. The classification committee apparently followed that opinion and proposed that the applicant be classified in Grade A 7, Step 2. On 24 May 1995 the Commission classified the applicant in Grade A 7, Step 2, as at 1 June 1991 and in Grade A 7, Step 3, at 28 September 1993 (the date of the judgment in Baiwir and Others v Commission), with financial effects from the date of that judgment (contested decision).

Admissibility

The contested decision is a measure adversely affecting the applicant, since it refuses him the maximum additional seniority in grade provided for in Article 32 of the Staff Regulations, namely Step 3. The fact that the decision improved the applicant's initial classification and thus granted in part his request to be reclassified does not call that analysis in question. The action is therefore admissible (paragraphs 47 and 50).

See: 33/79 and 75/79 Kühner v Commission [1980] ECR 1677, para. 9

Substance

Claim for the annulment of the Commission's decision of 24 May 1995 revising the applicant's classification

The 1983 decision was adopted for the purpose of implementing, inter alia, the second paragraph of Article 32 of the Staff Regulations. It is intended to lay down rules for the exercise of the wide discretion enjoyed by the appointing authority within the framework established by that article. It constitutes an internal directive which, even though it may not be regarded as a general implementing provision for the purposes of Article 110 of the Staff Regulations, must be regarded as a rule of practice which the administration imposes on itself and from which it may not depart without stating the reasons which have led it to do so, since otherwise it will infringe the principle of equality of treatment (paragraph 67).

See: T-2/90 Ferreira de Freitas v Commission [1991] ECR II-103, paras 56 and 61, and the references to the case-law of the Court of Justice cited there

The provision in question applies to all categories within the meaning of Article 5 of the Staff Regulations wherever ‘a degree is not required for access to the post to be filled’ and provides that in such cases all the professional experience acquired in the context of fulltime activity normally requiring such a degree may be taken into consideration for the purposes of additional seniority in grade.

In order to determine the scope of that measure as regards a general competition and a category A post, it is appropriate to read it in the light of the sixth paragraph of Article 2 of the 1983 decision, which applies only to officials recruited following a notice of competition requiring completion of university studies leading to a degree as a condition of access. The sixth paragraph only allows professional experience which the persons concerned have acquired after obtaining the degree entitling them to enter the competition to be taken into account.

It follows from a reading of those two provisions together that the sixth paragraph, by limiting any additional seniority in grade to professional experience acquired after obtaining the required degree, is more restrictive than the provision at issue, which has no such limitation. That distinction does not call for criticism from the aspect of the principle of equal treatment. Competitions under the sixth paragraph and those coming under the provision at issue are two distinct types of competition. The principle of equal treatment merely requires equal treatment for all officials recruited at the end of the same competition (paragraph 71).

See: Case 266/83 Samara v Commission [1985] ECR 189, paras 12 and 15; Ferreira de Freitas v Commission, cited above, paras 58 and 61

Competition CES/A/6/89 was open both to those holding a university degree and to those not holding such a degree, provided that the latter had equivalent professional experience. Notice of competition COM/2430/90 required as a condition of suitability either a university degree or equivalent professional experience. The applicant was therefore in a position ‘where a degree [was] not required for access to the post to be filled’ within the meaning of the provision at issue. The latter provision therefore covers the applicant's situation and should have been applied.

According to the Commission, however, where an applicant was admitted to the competition on the basis of his professional experience alone, it is necessary to deduct five years from the total number of years of professional experience in order to compensate for the absence of a university degree, so that he could not in any event show that he had the seven years' professional experience stipulated in Artide 3 of the 1983 decision for Step 3.

The principle of equal treatment may provide justification in the case of a ‘mixed’ competition, which is open both to those holding a university degree and to those not holding such a degree, for the successful candidates in the former category and those in the latter category being placed on an equal footing for the purposes of additional seniority in step, by compensating for the fact that the latter have no degree by an appropriate number of years' professional experience. Such compensation must be disregarded here, however, since the applicant had both professional experience and a university degree.

The contested decision must therefore be annulled on the ground that it infringes the provision at issue.

Operative part:

The Commission's decision of 24 May 1995 is annulled in so far as it classifies the applicant in Step 2 of Grade A 7 with effect from 1 June 1991 and in Step 3 of Grade A 7 with effect from 28 September 1993.

The remainder of the application is dismissed.