JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

5 November 1997

Case T-12/97

Anna Barnett

v

Commission of the European Communities

‛Officials — Article 31(2) of the Staff Regulations’

Full text in French II-863

Application for:

annulment of a decision of the Commission of 9 October 1996 rejecting a request for review of a decision of 14 May 1996 on the applicant's classification in grade.

Decision:

Application dismissed.

Abstract of the Judgment

In 1981 the applicant was awarded a degree in ‘Philosophy and Modern Languages — French’ by the University of Oxford. Between September 1981 and December 1994 she worked in several government departments in the United Kingdom.

The applicant was a successful candidate in Open Competition PE/60/A held by the European Parliament in 1993.

On 20 June 1995 the Commission published Vacancy Notice COM/1775/95 advertising a post in Grade A 8/A 4 in Unit 1 ‘Water protection, soil conservation and agriculture’ in Directorate D ‘Environment quality and natural resources’ in Directorate-General XI — Environment, Nuclear Safety and Civil Protection (Unit XÏ.D.1).

By decision of 14 May 1996, the appointing authority appointed the applicant as a probationary official in the post advertised as an administrator in Grade A 7, Step 3.

On 2 August 1996 she lodged a complaint against that decision under Article 90(2) of the Staff Regulations applicable to officials of the European Communities (‘Staff Regulations’) claiming classification in Grade A 6.

By decision of the appointing authority of 4 September 1996 the applicant was established in her post.

By decision of 9 October 1996, the Commission dismissed the complaint of 2 August 1996 (‘contested decision’).

Substance

In support of her application the applicant relies on a single plea which can, in practice, be subdivided into two distinct pleas alleging, respectively, breach of Article 31(2) of the Staff Regulations and breach of Article 32 of the Staff Regulations.

The plea alleging breach of Article 31(2) of the Staff Regulations

The second branch of the plea, alleging that the Commission was wrong in rejecting her request for reclassification contained in the complaint, should be considered first (paragraph 44).

The power of the administration to appoint a newly recruited official to the upper grade in the starting or intermediate career bracket must be construed as an exception to the general classification rules (paragraph 47).

See: 219/84 Powell v Commission [1987] ECR 339, para. 8

Whilst, when appointing a newly-recruited official, the appointing authority is not, as a general rule, required to examine in each case whether Article 31(2) of the Staff Regulations should be applied or to state reasons for its decision not to make use of that provision, it is, on the other hand, required in special circumstances, such as where a candidate has exceptional qualifications, specifically to assess the possible application of that provision (paragraphs 48 and 49).

See: T-17/95 Alexopoulou v Commission [1995] ECRSC II-683, paras 20 and 21

Such qualifications must be assessed, not by comparison with the population as a whole, but in relation to the average level of qualification of successful candidates in competitions, who represent a group of people who are already very rigorously selected in accordance with the requirements of Article 27 of the Staff Regulations. A given level of practical experience cannot confer on the person possessing it a right to be appointed at the higher grade of the career bracket concerned.

See: C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, para. 30; Alexopoulou v Commission, cited above, para. 20

In the light of the great diversity in the types of practical experience evidenced by the candidates applying for posts as officials in the European public service, and the specific needs of each post to be filled, the decision to classify an official in a particular grade, based on Article 31(2) of the Staff Regulations, comes within the scope of the wide discretion vested in the appointing authority (paragraph 51).

See: Klinke v Court of Justice, cited above, para. 31; Alexopoulou v Commission, cited above, paras 19 and 21

In this case, it must be observed that, following receipt of the complaint, the Commission made an assessment of the possible application of Article 31(2) of the Staff Regulations to the applicant's case. By the contested decision, it decided to reject the request for reclassification (paragraph 52).

Judicial review cannot take the place of the assessment by the appointing authority but must be restricted to the question whether the appointing authority exercised its powers in a manifestly erroneous manner. In this case the applicant has furnished no evidence which would lead the Court to believe that this was so (paragraph 53).

See: Klinke v Court of Justice, cited above, para. 31

As regards the alleged specific needs of the service, it should be noted that the European institutions, by their very nature, have very particular needs in any event (knowledge of several languages, specialisation in various fields, etc.). In the light of the vacancy notice in question, there is no evidence that there was a specific need of the service requiring the recruitment of a particularly highly qualified candidate, the criterion laid down in the judgment in Alexopoulou (paragraphs 54 and 55).

It follows that the appointing authority was entitled to reject the request for reclassification submitted by the applicant. The second branch of the plea must, accordingly, be dismissed (paragraph 56).

The first branch of the plea, alleging that the appointing authority did not fulfil the obligation incumbent on it to make a specific assessment of the possible application of Article 31(2) of the Staff Regulations, it should be pointed out that the appointing authority did make such an assessment following the lodging of the complaint. Accordingly, that branch of the plea must be understood to mean that the appointing authority is criticised for not making that assessment when the applicant was recruited (paragraphs 57 and 58).

The appointing authority is required in special circumstances, such as where a candidate has exceptional qualifications, specifically to assess the possible application of the provision in question. Such an obligation arises in particular where the specific needs of the service require the recruitment of a specially qualified official and therefore justify recourse to Article 31(2) of the Staff Regulations or where the person recruited possesses exceptional qualifications and requests the application of those provisions (paragraph 59).

See: Alexopoulou v Coinnission, cited above, para. 21

It must be observed that the post to be filled did not require the recruitment of a particularly highly qualified candidate. Moreover, at the time of her recruitment the applicant did not request the application of Article 31(2) of the Staff Regulations. Finally, in the exercise and within the limits of its veiy wide power of assessment, the appointing authority found that the applicant did not have exceptional qualifications. It was therefore not required, on the recruitment of the applicant, specifically to assess the possible application of Article 31(2) of the Staff Regulations (paragraph 60).

The plea alleging breach of Article 32 of the Staff Regulations

Whilst Article 90(2) of the Staff Regulations does not itself lay down any conditions as regards the substance of and reasons for a complaint under that article, the firmly established rule of case-law that the application to the Court must be consistent with the complaint none the less requires, if the application is not to be inadmissible, any plea put forward before the Community judicature to have been raised already in the complaint in the context of the pre-litigation procedure, so that the appointing authority was in a position to know in sufficient detail the criticisms which the person concerned levelled at the contested decision (paragraph 67).

See: T-496/93 Allo v Commission [1995] ECRSC II-405, para. 26

An official may not confine himself to relying, in his complaint, on the relevant facts. The complaint must also indicate, even if they are not formulated in legal terms, the complaints raised by the applicant in support of his challenge to the decision at issue (paragraph 68).

See: T-361/94 Weir v Commission [1996] ECRSC II-381, para. 27

Not only does the complaint make no reference to the plea in point but also contains nothing from which the Commission, even endeavouring to inteipret the complaint with an open mind, could have inferred that the applicant wished to plead infringement of Article 32 of the Staff Regulations (paragraph 69).

See: 133/88 Del Amo Martinez v Parliament [1989] ECR 689, para. 13

Operative part:

The application is dismissed.