Opinion of Mr Advocate General Sir Gordon Slynn delivered on 9 March 1988. - Engelina Lucas v Commission of the European Communities. - Officials - Classification in step of an official in Category B appointed to Grade LA7 following an open competition. - Case 47/87.



European Court reports 1988 Page 03019



Opinion of the Advocate-General

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My Lords,

In 1968 following an open competition Mrs Engelina Lucas was appointed by the Commission as an official in Grade C 3, Step 3 . After passing another open competition she was appointed to a post in Grade B 5 in 1977 . She was promoted to Grade B 4 in 1980 and to Grade B 3 in 1984 .

Mrs Lucas obtained a "certificat pratique de langue française ( 1er degré )" from the University of Paris in 1966 and a diploma in administration from the Brussels Institute for Administrative Sciences in 1983 .

After passing open competition COM/LA/381 for translators, she was appointed as a translator with effect from 1 April 1986 by a Commission decision of 7 April 1986 based on the Staff Regulations, in particular Articles 1, 2, 29 and 30, and on the Commission Decision of 10 March 1971 on Criteria for Determining the Grade and Step of Officials Changing Category, as amended by the Decision of 7 January 1976 . She was classified in Grade LA 7, Step 1 . No additional seniority was allowed to her .

She took the view that the classification in Step 1 was wrong and that she should have been classified in Step 3 in the light of her experience and language knowledge as specially mentioned in her periodical reports . On 18 July 1986, she lodged a complaint against the decision classifying her in Step 1 . She did not receive a reply to that complaint which was deemed to have been rejected on 19 November 1986 . Consequently, Mrs Lucas brought the present action by an application lodged on 17 February 1987 .

In her application she asks the Court to set aside the rejection of her complaint, to rule that she is to be considered as having been recruited ( according to Articles 29 to 32 of the Staff Regulations ) and that Article 46 of the Regulations is inapplicable to her case . She also asks for the case to be sent back to the appointing authority for it to give effect to the Court' s judgment .

In Mrs Lucas' view she was "recruited" to a new job and not "promoted" to it so that under the second paragraph of Article 32 of the Staff Regulations the appointing authority had power to take into account her training and special experience for the post in order to allow her additional seniority of 48 months in the grade . This meant that she should have been given two extra steps and been placed in Step 3, taking into account that she had been working for the Commission for 17 years and that during that period she had spent much of her time doing translation work and work which corresponded to the work carried out by Category A officials .

Mrs Lucas thus moved from being an official in Category B to being an official in the Language Service . She moved from B 3 to LA 7, which in ascending order of rank is four grades higher, and from being an "assistant adjoint" to being a translator .

The Commission contends that this application is inadmissible since even if it was wrong to use Article 46, the same result would inevitably follow under Article 32 . That submission seems to me to beg the very questions to be answered . There are two broad issues : ( a ) whether Article 46 fell to be applied, and ( b ) if not, whether the applicant has any valid claim that if Article 32 were used the same result would not necessarily follow . I regard the case as admissible .

Was the Commission right to treat what happened as a promotion so that Article 46 fell to be applied?

It is plain, as was recognized in both Case 266/83 Samara (( 1985 )) ECR 189 and Case 273/83 Michel (( 1985 )) ECR 347, that this sort of move was not a "promotion" by appointment to the next higher grade within the meaning of Article 45 ( 1 ) of the Staff Regulations .

It may be regarded as a "promotion" from one category to another or as a "transfer" from one service to another within the meaning of Article 45 ( 2 ). That, however, is not the end of the problem . It is the beginning . For my part, as a matter of language ( especially if one adopts the view that this was "carefully settled wording" as Mr Advocate General Lenz felt in Michel ) I consider that "appointed to a higher grade" in Article 46 is limited to "appointment ... to the next higher grade" in Article 45 ( 1 ). If the draftsman had intended to include transfer to another service following a competition ( a very different transaction from appointment from those who have completed a minimum period in their grade ) he would not simply have relied on the words "appointed to a higher grade ". He would have added in Article 46 after the word "grade" "or transfer to another service ". Accordingly, even though in Michel the Court, whilst considering that there was room for doubt, felt that Article 46 had to be interpreted as including an official moving from one category to another ( and reliance can to some extent be placed on the word promotion in respect of movement between categories in Article 45 ( 2 ), even though the French version of Article 45 ( 2 ) uses "passage" as opposed to "nomination" in Article 45 ( 1 ) ) it does not to my mind follow that "transfer to another service" is in the same position .

On the other hand an official so moved is not in the strict meaning of the word "recruited", the word used in Article 32, since he is already an official . It seems to me that there is a gap in the various provisions as the Commission concedes . The present situation of transfer between categories and services after an open competition is not expressly dealt with and the task of the Court is to decide whether the Commission was right to apply Article 46 rather than Article 32, or whether some other rules indicated by fairness and good administration should be implied by analogy . As in Case 138/84 Spachis (( 1985 )) ECR 1939 ( where the Court found that special experience which had not been taken into account for one appointment should be taken into account for the purpose of another appointment following a different competition for the purposes of Article 31 ( 2 ) ) it seems to me that the right approach is to see to which of the two systems ( recruitment and promotion ) the event which occurred is closest .

Starting from the view that "the purpose of Article 46 is to ensure the greatest possible continuity regarding an official' s seniority and salary as his career develops" ( Michel ) or that "Article 46 is intended to ensure that in the normal course of an official' s career his seniority progresses with the greatest continuity" ( Samara ), it seems to me that cases are possible where after an external competition the "jump" is such that it really cannot be regarded as a normal progression or part of "the greatest possible continuity", the situation dealt with by Article 45 ( 1 ). For example, someone not legally qualified working in the administrative service of the Commission who took an external law degree and was called to the English Bar, and who was then appointed to the Legal Service of the Commission or as a legal translator in A 7 or LA 7, could not in any real sense be said to be continuing his normal progression . He would effectively, albeit always an official, be changing careers and beginning a new career . He does not in my opinion fall within Article 46 .

I do not for my part think that the fact that the salaries of the highest step of the lower grade and the lowest step of the next higher grade overlap, or that there is such an overlap between the various categories ( which might in particular cases explain the use of Article 46 ) means that Article 46 has to be applied in all situations of transfer between services . Promotion from B 3 to A 7 and a change of function from "assistant adjoint" to "traductrice" seem to me to be such a change as not to fall within Article 46 .

On that basis provisions analogous to those set out in Article 32 fall to be applied and, in my opinion, the applicant is entitled to be treated in the same way as external candidates taking part in the open competition as the Court found in Samara . This case seems to me to be different from Michel, or at any rate to be an exception to the principle accepted in Michel, which was based on the premiss that when a candidate is first appointed his experience to that date will have been taken into account under the second paragraph of Article 32 or during his career . That is likely to be so where there is a normal progression of the career . But if a person is accepted for one kind of post, his experience relevant to that kind of post will be taken into account . His expertise or even his particular level of ability in another subject ( e.g . as a translator rather than as a secretary or a typist ) may be of marginal or no relevance . Nor will it become crucial until it needs to be considered for the new post ( e.g . that of translator ).

In view of the Commission' s insistence that Mrs Lucas' appointment in C 3, and as I understand it, even her subsequent posts with Grade B 5, B 4 and then B 3, did not require such expertise as a translator, it seems to me that it cannot confidently be said that her training and special experience ( Article 32 ) had necessarily been taken into account, on her appointment or on subsequent promotion .

On the other hand, I do not see that any discrimination contrary to Article 5 of the Staff Regulations or otherwise arises in this case as it did arise in Samara . The notice of open competition, COM/LA/381 ( Official Journal C 48, of 18 February 1983, p . 15 ) makes no distinction between those who were and those who were not already officials . The "Decision on the Criteria Applicable to Grade and Step Classification upon Recruitment" of 21 October 1983 makes no such distinction .

The real question as I see it is whether those criteria are, or have been applied, in a way compatible with Article 32 of the Staff Regulations . Article 32, after laying down that an official shall be recruited at the first step in his grade, provides : "However the appointing authority may, taking account of the training and special experience for the post of the person concerned, allow additional seniority in his grade" which in respect of LA 7 is not to exceed 48 months .

The notice of competition requires that candidates must have completed a full university course, with degree or diploma, and candidates with a university degree in a subject other than languages ( as has Mrs Lucas ) "must have at least one year' s experience since graduation in a post requiring a very good knowledge of languages ". It was accepted that she satisfied this latter test .

The Decision on Criteria provides that the minimum period of professional experience for classification in the first step of the starting grade of each career bracket is three years for Grades A 7 and LA 7 and that "professional experience shall be calculated from the time 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 a level corresponding to that category ".

The Commission has accepted that Mrs Lucas' diploma in administrative sciences granted on 24 February 1983 was a qualification for this purpose and that by the time of her appointment as a translator in Grade LA 7 on 7 April 1986 she had completed the necessary three years to entitle her to be appointed in the first step of Grade LA 7 . It was thus accepted that her experience was of "a level corresponding to category LA 7 ".

Mrs Lucas' case is that she had worked for the Commission since 1968 . In any event she had been an assistant adjoint since 1977 so that by April 1986 she had completed nearly 9 years in that post . There is no dispute that she is an excellent translator . The Commission, however, considers that what she did was what every administrative official may do in translating documents and that the level required was not that of an LA 7 . That is a contention which runs oddly with the acceptance of the fact that her level corresponded to that required for category LA 7 .

Is it right to have regard only to experience subsequent to the grant of her university diploma?

I can well see that as a matter of administrative convenience it is helpful to take only the period of experience subsequent to the grant of the diploma, which is a ticket of admission for this particular competition and that there are arguments in favour of such an approach . On the other hand, neither Article 5, nor in particular the second paragraph of Article 32, limit the period of "equivalent professional experience" or "training and special experience" to the period subsequent to the award of a diploma . Article 32 is in quite general terms .

It seems to me, taking all the various factors into account, that the policy adopted by the Commission in the Criteria is unduly restrictive and that the Commission has fettered its discretion in a way which is inconsistent with the second paragraph of Article 32 . There may be cases in which the obtaining of a university diploma qualifies a person for the first time to do work at the level corresponding to the category of the new post . For example, a person with a modest command of a language who then works for a university degree in that language may only have acquired the capacity to do work at the level, and under the pressure required, of a translator by the time he acquires his degree . It would then be perfectly reasonable to count only his experience subsequent to the obtaining of the degree . On the other hand, if a person takes a degree in some other subject than a language ( history, economics, science ) which adds little or nothing to his command of the language but gives him a ticket of admission to a competition for a new category or service, then it seems to me strange to recognize as qualifying his experience and ability in translating after getting his degree in history, but to exclude his experience and ability before that degree is obtained if it is of the same level as that subsequent to obtaining his degree .

Accordingly, for my part, I consider that the Commission' s argument that even if Article 32 had been applied, the present applicant would inevitably have failed to be placed in Step 3 of Grade LA 7 should be rejected and that the decision challenged should be annulled .

This does not mean that Mrs Lucas is necessarily entitled to be placed in Step 3 of LA 7 . The Court does not have enough information to assess that, nor is it for the Court to do so . I consider, however, that the Commission should look at the case again . If her experience before obtaining her diploma is of the same level as that subsequent to obtaining the diploma ( the latter having been accepted as satisfying the Criteria, and thereby Article 32 ) then in my view the Commission should take it into account .

I conclude that the decision under review should be annulled and that the Commission should pay Mrs Lucas' costs .