ORDER OF THE COURT OF FIRST INSTANCE (First Chamber)

13 February 1998

Case T-195/96

Spyridoula Alexopoulou

v

Commission of the European Communities

‛Officials — Article 31(2) of the Staff Regulations — Application manifestly inadmissible or entirely unfounded’

Full text in French II-117

Application for:

on the one hand, the annulment, first, of the decision of the Commission of 8 January 1996 appointing the applicant to Grade A 7, Step 5, and implicitly refusing to appoint her to Grade A 6 and, secondly, the decision of 28 August 1996 rejecting a complaint against that decision and, on the other, for compensation for the material damage suffered by the applicant.

Decision:

Application dismissed.

Abstract of the Order

The applicant was a member of the temporary staff in Grade A 7 from 1989 and, after passing internal Competition No COM/T/A/93, was appointed by decision of 5 April 1994 of the appointing authority as a probationary official as an administrator in Grade A 7, Step 5, with effect from 1 December 1993.

The applicant brought an action for annulment of that decision in so far as it appointed her to Grade A 7, Step 5, and by implication refused to appoint her to Grade A 6. By judgment in Case T-17/95 Alexopoulou v Commission [1995] ECRSC II-683 {Alexopoulou v), the Court annulled the decision in so far as it concerned the applicant's classification in grade.

On 17 November 1995 the applicant submitted a request to be reclassified in Grade A 6, Step 8.

In accordance with the judgment in Alexopoulou I, the appointing authority then reconsidered the applicant's position under the Staff Regulations. On 8 January 1996 it took a fresh decision classifying the applicant in Grade A 7, Step 5, with effect from 1 December 1993 (the decision of 8 January 1996). According to that decision, the post to which the applicant was appointed did not require to be filled by an official with a level of qualification such as to justify an exception to the principle of recruitment in the starting grade of a career bracket. So far as concerns the applicant's qualifications, the appointing authority found, pursuant to the discretion conferred upon it by Article 31 of the Staff Regulations of Officials of the European Communities (the Staff Regulations), that they were not so exceptional as to justify an exception to the general principle of classification in the starting grade of a career bracket upon appointment.

On 3 April 1996 the applicant lodged a complaint against the decision of 8 January 1996. By decision adopted on 28 August 1996, notified to the applicant on 3 September 1996, the Commission rejected that complaint (decision of 28 August 1996).

Law

Vie claim for annulment of the decision of 8 January 1996

Under Article. 31(2) of the Staff Regulations, the appointing authority has the power to appoint a newly recruited official to the upper grade in the starting or intermediate career bracket. In certain cases, the appointing authority is required to assess the specific qualifications and practical experience of the official in the light of the criteria set down in Article 31 of the Staff Regulations. However, where it has in fact made such an assessment, and subject to any conditions in respect of classification which it may have imposed on itself in the vacancy notice, the appointing authority is free to decide, taking into account the interests of the service, whether it should award a classification at a higher grade (paragraphs 36 and 38).

See: Alexopouloii I, cited above, para. 21; T-12/97 Barnett v Commission [1997] ECRSC II-863, para. 47

In that regard, judicial review cannot take the place of the assessment made by the appointing authority. It must be restricted to the question whether there has been any breach of essential procedural requirements, the decision is based on incorrect or incomplete findings of fact or is vitiated by misuse of powers, errors of law oían inadequate statement of reasons (paragraph 39).

See: C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, para. 31 : Barnett v Commission, cited above, para. 53

In claiming that the appointing authority committed a manifest error of assessment as regards the exceptional nature of her qualifications, the applicant maintains that the appointing authority could exercise its discretion only by appointing her to the higher grade in the career bracket. However, even where newly-recruited officials fulfil the conditions for classification in the higher grade, they do not thereby have an automatic right to such classification (paragraph 43).

See: 123/75 Küster v Parliament [1976] ECR 1701, para. 10; C-119/94 PCoussios v Commission [1995] ECR I-1439, para. 19; T-142/95 Delvaux v Commission [1997] ECRSC II-1247, para. 39

The claim for annulment of the decision of 28 August 1996 rejecting the complaint of 3 April 1996

Every decision purely and simply rejecting a complaint, whether that decision be express or implied, does no more than confirm the act or failure to act to which the complainant takes exception and does not constitute, by itself, a measure which is open to challenge (paragraph 48).

See: 33/79 and 75/79 Kuhner v Commission [1980] ECR 1677, para. 9; 371/87 Progoulis v Commission [1988] ECR 3081, para. 17

Compensation for material damage

The action for compensation for the damage arising, according to the applicant, from the fact that she could have been promoted to Grade A 5 from 1 December 1995 if she had been established in Grade A 6 with effect from 1 December 1993 cannot succeed unless the applicant was entitled to be promoted to Grade A 5 at that date (paragraph 53).

Officials do not have an automatic right to promotion even if they fulfil the conditions for promotion. In assessing the merits to be taken into consideration when deciding on a promotion pursuant to Article 45 of the Staff Regulations, the appointing authority has a large measure of discretion (paragraph 54).

See: Coussios v Commission, cited above, para. 19; Delvaia v Commission, cited above, para. 39

Operative part:

The application is dismissed.