JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

9 July 1997

Case T-92/96

Roberto Monaco

v

European Parliament

‛Officials — Appointment — Classification in grade — Infringement of the notice of competition and vacancy notice — Principle of the protection of legitimate expectations — Article 31 (2) of the Staff Regulations — Principle of equal treatment and nondiscrimination’

Full text in French II-573

Application for:

annulment of the decision of the European Parliament of 22 August 1995 appointing the applicant to a post of clerical assistant, in so far as that appointment was made at Grade C 5.

Decision:

Annulment.

Abstract of the Judgment

The applicant, Mr Monaco, entered the service of the European Parliament on 20 February 1980, and was appointed at Grade D 3. By decision of 1 April 1982 he was promoted to Grade D 2, and by decision of 1 May 1991 he was appointed to a post of chief assistant in Grade D 1.

In November 1993 he applied to take part in open competition PE/115/C organized by the Secretariat of the Parliament in Luxembourg to form a reserve list for the recruitment of clerical assistants (assistant technicians) (notice published in OJ 1993 C 291 A, p. 8) (notice of competition PE/115/C or the notice of competition).

Under the heading ‘IV. Conditions of employment’, the notice stated inter alia:

‘Successful candidates will be recruited to grade C 5 or possibly grade C 4 in the light of relevant professional experience. ’

By letter of 21 December 1994 the applicant was informed that the selection board for the competition had placed him in third position on the reserve list.

On 1 May 1995 new internal rules of the Parliament on grading, adopted by the Secretary-General on 25 April 1995, entered into force (the new internal rules), replacing the internal mies of 28 October 1986 on grading on recruitment (the old internal rules).

Article 1 of the new internal rules provides:

‘Newly recruited officials or temporary staff shall be appointed to the starting grade of their career bracket, pursuant to Article 31(1) of the Staff Regulations.

Pursuant to Article 31(2), the Appointing Authority may, on an exceptional basis and within the limits laid down by the aforementioned provisions, make exceptions to Article 31 ( 1 ) of the Staff Regulations, after using its discretionary power to assess the person's professional experience, and appoint him to the higher grade in the career bracket.’

By decision of 22 August 1995 (the contested decision) the applicant was appointed to a post of clerical assistant in Grade C 5, Step 4, with effect from 1 September 1995.

He was appointed to that post following Vacancy Notice No 7752 - Post No VI/C/0985 (Vacancy Notice No 7752). That notice, for a post of ‘clerical assistant/clerical officer/principal clerical officer (technician)’, stated that it related to category C.

Under the heading ‘Qualifications and experience required’, it specified:

‘— Secondary education (general or technical) or equivalent professional experience;

— qualification in radio-engineering;

— proven experience in areas similar to those outlined under “Job Description”;

— thorough knowledge of one official language of the European Union and good knowledge of a second. ’

Under the heading ‘Job Description’, the notice stated that the technical duties in question called for experience and judgment on the part of the person concerned.

Substance

The plea in law alleging infringement of Notice of Competition PEI 115/C, Vacancy Notice No 7752 and the principle of the protection of legitimate expectations

The vacancy notice did not specify the grade at which the post would be filled, and the notice of competition did not state that a certain level of professional experience would confer entitlement to be classified in Grade C 4. Those notices therefore left untouched the wide discretionary power which the appointing authority enjoys under Article 31(2) of the Staff Regulations of Officials of the European Communities with respect to the classification of an official in a grade. When exercising such a power, the administration may take into account the specific needs of the department, which may require the recruitment of a specially qualified person. There is nothing in the description in the vacancy notice of the duties to be performed to suggest that the specific needs of the department required the recruitment of a specially qualified person. It follows that the contested decision was not contrary to the notices in question (paragraphs 28 and 29).

See: 146/84 De Santis v Court of Auditors [1985] ECR 1723, para. 9; T-17795 Alexopoulou v Commission [1995] ECRSC II-683, paras 19 and 21

It also follows that the two notices could not have given rise to a legitimate expectation on the part of the applicant to be appointed at Grade C 4 (paragraph 30).

See: T-123/89 Chomel v Commission [1990] ECR II-131, para. 26

The plea in law alleging infringement of Article 31(2) of the Staff Regulations and the principle of equal treatment and non-discrimination

The exercise of the discretion conferred on the appointing authority by Article 31(2) of the Staff Regulations may be governed by internal decisions. There is nothing in principle to prohibit that authority from establishing, by an internal decision of a general nature, mies for the exercise of the discretion conferred on it by the Staff Regulations. Such an internal directive must be regarded as an indicative rule of conduct which the administration imposes on itself and from which it may not depart without specifying the reasons which led it to do so, since otherwise the principle of equal treatment would be infringed.

See: 190/82 Blomefield v Commission [1983] ECR 3981, para. 20; De Santis v Court of Auditors, para. II; T-2/90 Ferreira de Freitas v Commission [1991] ECR II-103, para. 61; Alexopoitlouv Commission, para. 23

Such an internai directive cannot lawfully in any circumstances lay down rules which derogate from the provisions of the Staff Regulations or a fortiori from the general principles of law (paragraph 47).

See: Blomefield y Commission, para. 21; Alexopoulou v Commission, para. 24

Nothing in the Staff Regulations prohibits the institutions from adopting a new internal decision providing for a stricter application of Article 31(2) of the Staff Regulations, provided that they do not waive altogether the discretionary power conferred on them by that article (paragraph 48).

See: Alexopoulouv Commission, para. 24

However, an institution breaches the principle of equal treatment and nondiscrimination if, first, it applies to an official recruited from a competition the provisions of new internal directives which provide for a stricter application of Article 31(2) of the Staff Regulations, whereas other officials have been appointed by the institution from the same competition but before the entry into force of the new internal directives and the old internal directives and associated practice have been applied to them, and, second, it does not show that the difference in treatment is justified (paragraphs 55 to 58).

See: 92/85 Eamai v Court of Justice [1986] ECR 3157, para. 14; T-109/92 Lacruz Bassols v Court of Justice [1994] ECRSC II-105, para. 87

Operative part:

The decision of the Parliament of 22 August 1995 is annulled in so far as it concerns the applicant's classification in grade.