1.

In support of his argument the applicant has explained at length how his present grade was arrived at. Even at the beginning of his career no generosity was shown in the award of his grade, since his former employer, the Audit Board, did not apply the Commission's decision of 6 June 1973 on the allowing of additional seniority. In his case, moreover, the Audit Board departed from its previous practice by failing to promote him to Grade A 6 at the time when be became established, since in 1977 it was decided to suspend promotions pending the creation of the Court of Auditors. He alleges that it must therefore be assumed that as long ago as 1974 to 1978 his grading was too low and inconsistent with his duties under the Audit Board. At the same time it is evident that grades have always been generously awarded to new employees of the Court of Auditors. That was clearly demonstrated by the decision of February 1980 concerning the establishment of grading criteria. New staff members thereby benefited from preferential treatment; that continued after their estblishment, which took place following highly dubious competitions. The end result was not only that higher classifications were discernible within the applicant's own grade (A 6) but also that new employees having comparable experience and qualifications obtained higher grades. (a) In the light of that submission it is first necessary to eliminate all the matters which cannot, in my view, be dealt with in the present proceedings. (aa) That undoubtedly applies to the contentions concerning the organization of the applicant's career under the former Audit Board. Indeed, it is now no longer possible to consider whether everything was properly conducted at the time, because the relevant acts and the subsequent behaviour of the Audit Board were not challenged within the prescribed periods. We must therefore assume the legality of those measures, which means that the Court of Auditors cannot be required to take account of any supposed shortcomings on the part of the Audit Board in handling the applicant's career, quite apart from the fact that any demand to that effect should have been asserted, at the latest, at the moment when the applicant was transferred to the Court of Auditors. (bb) The same applies to the implied and overt criticism by the applicant of the manner in which the Court of Auditors conducted its competitions, which allegedly made it comparatively easy for persons employed under contract to obtain favourable posts as officials. Quite apart from the apparent irrelevance of those observations to the claims made by the applicant, they must be disregarded if only because the competitions which have been criticized were not challenged in good time and consequently must now be regarded as having been lawfully conducted. (cc) Turning finally to the point that the applicant compares his grade with that of officials and employees in higher grades and to the consequent inference that, given his qualifications and experience, assignment to Career Bracket A 5/A 4 or even to Grade A 3 would have been appropriate, I consider that it should be held that he is debarred from seeking a decision of that nature in the present proceedings. In order to fill the posts referred to by the applicant, a series of competitions was organized, in some of which the applicant participated. Like other interested parties, the applicant thus had the opportunity of obtaining posts in higher grades, which leads us to assume — since no complaints or applications were lodged — that in all respects the competitions are properly conducted. That being so, however, it cannot be accepted that he has an interest worthy of legal protection permitting him, by relying upon the principle of equal treatment and by circumventing the procedures laid down in the Staff Regulations, to attain a higher grade. (b) The only outstanding question is therefore whether the applicant can, by pointing to the Court of Auditors' decision on grading criteria and its resultant practice, demand to be appropriately re-graded within Grade A 6. Here he relies upon the basic provision contained in Article 5 (3) of the Staff Regulations, which provides as follows: “Identical conditions of recruitment and service career shall apply to all official. belonging to the same category or the same service.” In his view that provision implies an obligation to apply the same criteria to all officials not only at the time of their engagement but also during the subsequent development of their careers, so as to avoid the situation which allegedly arose at the Court of Auditors whereby the preferential grading of newly-recruited officials and employees caused the careers of officials transferred from other Community institutions to be retarded. He argues at length that he holds a degree in economics, with special qualifications in finance and accountancy, and that on taking up his post in 1974 he had already acquired twelve years' practical experience. Thus, within Career Bracket A 7/A 6 he had a better education and greater experience in accountancy than other officials in higher grades and possessed, in so far as his education was concerned, higher qualifications than fifty-three of the sixty-five officials who were entrusted with auditing duties. In reply the Court of Auditors contends first and foremost that, in assigning the applicant to a grade, it was bound by the rule contained in Article 46 of the Staff Regulations. Hence the applicant's situation is not comparable to that of officials and employees who were recruited on the basis of competitions organized by the Court of Auditors, to whom alone the decision of February 1980 applied. In the written procedure the Court of Auditors merely adduced the additional argument that the applicant was wrong in maintaining that he had a better education and greater experience than newly-recruited officials in Grade A 6. As regards this crucial point of contention, it must clearly be acknowledged that the provision contained in Article 5 (3) of the Staff Regulations, which embodies the principle of equal treatment, is of particular importance to employment law. That principle is normally implemented automatically by applying the provisions of the Staff Regulations concerning the detailed organization of careers, inter alia by applying Article 46 which governs promotions, in cases where there has been consistency from the start in organizing the careers. Matters may be different, however, where a newly-created body engages some staff from other Community institutions, in which their careers were governed by a definite code of practice, while recruiting other staff from outside and applying to them a separate set of grading rules unknown in that particular form to the other institutions. Should such a situation disclose that an inflexible adherence to the rules of the Staff Regulations concerning the progress of a career, coupled with the application of generous grading criteria to newcomers to the service, is obstructing the attainment of the aim of Article 5 (3), then it is my opinion that provisions such as those of Article 46 must be subordinated to the overriding principle of equal treatment, which must be reasserted immediately by means of appropriate corrective measures. Consequently, after establishing a new grading practice for newly-recruited officials and employees, the Court of Auditors cannot respond to officials whose careers began in less favourable circumstances by relying upon the rigid rules of the Staff Regulations applicable to them, which ostensibly demonstrate that the two situations are not comparable. Rather, in the interests of equal treatment, which is concerned solely with the duties performed and not with the passing of a competition at the Court of Auditors itself, it is bound to amend their grades in the light of the newly-established criteria. Moreover, the applicant deserves a higher classification within Grade A 6, if the criteria contained in the decision of February 1980 are applied to him. Unless I am mistaken, the decision sees as a decisive factor any practical experience which is acquired after obtaining the degree which is required for recruitment to the Court of Auditors and for the performance of certain routine duties. The applicant's present classification within Grade A 6 may perhaps be explicable in terms of the experience he acquired over roughly six years of employment with the Communities. If account were taken of his experience prior to recruitment — the applicant mentions twelve reckonable years —, he would have to be granted a higher step, especially as it is inconceivable (and was not even contended) that that experience was such as to be disregarded by the Court of Auditors in adopting its grading decision. That view is corroborated by the abovementioned memorandum drafted by the competent Member of the Court of Auditors, which examines the problem of discrimination which was raised by the applicant. The memorandum clearly expounds how newly-recruited officials and employees were generally receiving better grades than was possible under Article 46 of the Staff Regulations for officials transferred from other institutions. In particular, within Grade A 6 the result was a striking discrepancy between the grading of the applicant and that of other officials having manifestly the same duties, who moreover had only probationary status at that time. I would merely point out that according to the memorandum a probationary official who was ten years his junior was in the same step as the applicant and that another probationary official, likewise ten years younger, was classified two steps higher than the applicant, which — there being no question here of superior university qualifications — could not possibly be explained in terms of greater experience. Furthermore, I would recall that the representative of the Court of Auditors readily conceded at the hearing that the applicant would, under the decision of February 1980, have been classified two steps higher and would accordingly now be in Grade A 6, Step 5. That being so, since the Court of Auditors failed to adopt the idea contained in the memorandum of June 1980, which was to seek an adjustment by giving priority to the promotion of certain officials, it is my opinion that one cannot fail to recognize the justice of the applicant's claim that discrepancies in grading should be eliminated by applying to him the grading criteria laid down by the decision of February 1980. It is of course not the task of the Court of Justice to determine the exact grade of the applicant; that is a matter for the Court of Auditors, which must carefully evaluate the applicant's experience and — if relevant — his qualifications. The Court of Justice can restrict itself — indeed, the applicant's claims on this point go no further — to declaring that the applicant was right in seeking an amendment of his grade in early 1980 and that the Court of Auditors' refusal to effect that amendment by granting the applicant a grade comparable to that of new recruits cannot be upheld.