Judgment of the Court (First Chamber) of 13 July 1972. - Marie-Josée Besnard and others v Commission of the European Communities. - Joined cases 55 to 76, 86, 87 and 95-71.



European Court reports 1972 Page 00543

Danish special edition Page 00145

Portuguese special edition Page 00193



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - PROMOTION - CHANGE OF CATEGORY - CLASSIFICATION

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLES 5 AND 46 )

2 . OFFICIALS - REMUNERATION - CONNEXION BETWEEN GRADE AND POST

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLE 62 )

3 . OFFICIALS - PROMOTION - CHANGE OF CATEGORY - LOSS OF SALARY - COMPENSATORY ALLOWANCE

( STAFF REGULATIONS OF THE EUROPEAN COMMUNITIES, ARTICLES 5, 44 AND 46 )

Summary

1 . ARTICLE 5 OF THE STAFF REGULATIONS, UNDER WHICH IN EACH CATEGORY OFFICIALS SHALL BE CLASSIFIED WITHOUT EXCEPTION IN CAREER BRACKETS COMPRISING ORDINARILY TWO GRADES LAYS DOWN A PRINCIPLE WHICH IS ONE OF THE GUIDING RULES OF THE STAFF REGULATIONS . IT IS THEREFORE NOT POSSIBLE TO APPLY THE RULES CONTAINED IN ARTICLE 46 SOLELY FOR DETERMINING STEP IN CASES OF PROMOTION BY ANALOGY IN ORDER TO DETERMINE THE GRADE IN CASES OF CHANGE OF CATEGORY .

2 . REMUNERATION IS DEPENDENT ON THE GRADE AND THE POST NOT THE CONVERSE .

3 . THE ADMINISTRATIVE AUTHORITY MAY SEEK TO RECONCILE THE GENERAL RULE THAT THE GRADE IN WHICH AN OFFICIAL IS PLACED FOLLOWING A CHANGE OF CATEGORY MAY NOT BE DETERMINED BY THE REMUNERATION WHICH HE RECEIVED PREVIOUSLY WITH THE LEGITIMATE INTEREST OF THE OFFICIAL THAT, SAVE IN EXCEPTIONAL CASES, HIS PROMOTION SHALL NOT ENTAIL LOSS OF SALARY . WHILE DEROGATION FROM ARTICLE 5 OF THE REGULATIONS IN THE EVENT OF CHANGE OF CATEGORY, SOLELY IN ORDER TO AVOID CAUSING FINANCIAL LOSS TO THE OFFICIAL CONCERNED IS NOT JUSTIFIED, THE ADMINISTRATION MAY NEVERTHELESS GRANT THAT OFFICIAL A PROVISIONAL COMPENSATORY ALLOWANCE AND MAY EVEN, IN CERTAIN CASES, GRANT TO HIM THE TWO-YEARLY INCREMENTS RELATING TO HIS FORMER GRADE .

Parties

IN JOINED CASES 55 TO 76/71, 86, 87 AND 95/71

MARIE-JOSEE BESNARD, MARCELLO BURATTINI, ANNUNZIATO COCO, JACQUES DORP, FERNAND ERNEST, WALTER GAERTNER, GEORGES GOSSET, RENZO GREGORI, HELMUT HALLER, HEINZ HELMERT, DIETER-KARL HERMANN, JEAN-MARIE LEFEUVRE, ANTON ANDREA MARIANI, JEAN-LOUIS DENIEL, PIERRETTE DETHINE, GIOVANNI BATTISTA DONA, MARIANNE MARTINEZ, GENEVIEVE MILLOT, LEON MORIS, JEAN ORIGER, UMBERTO PIGARELLA, ROBERTO SOLA, HELENE FRANCKX, SIMONE MOLINIER, MARIE-CLAIRE SAUET,

ALL OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MARCEL GREGOIRE, ADVOCATE OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF T . BIEVER, 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE, APPLICANTS,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER LOUIS DE LA FONTAINE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBER OF EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISIONS OF THE COMMISSION RELATING, ON THE ONE HAND, TO THE CRITERIA FOR CLASSIFICATION IN CASES OF CHANGE OF CATEGORY, AND ON THE OTHER HAND, TO CLASSIFICATION IN GRADE AND STEP OF THE APPLICANTS AFTER APPOINTMENT,

Grounds

1 BY APPLICATION LODGED ON 27 JULY, 4 OCTOBER AND 29 NOVEMBER 1971 RESPECTIVELY THE APPLICANTS HAVE BROUGHT ACTIONS SEEKING THE ANNULMENT OF THE GENERAL DECISION OF THE DEFENDANT OF 10 MARCH 1971 PUBLISHED IN THE STAFF COURIER OF 15 APRIL 1971 CONCERNING " CRITERIA FOR CLASSIFICATION IN CASES OF CHANGE OF CATEGORY " AND FOR THE ANNULMENT OF DECISIONS TAKEN ON THEIR CLASSIFICATION .

2 BY THIS GENERAL DECISION AN OFFICIAL APPOINTED TO A POST IN A CAREER BRACKET IN A HIGHER CATEGORY SHALL BE CLASSIFIED IN THE STARTING GRADE OF THAT CAREER BRACKET .

3 THE STEP ASSIGNED TO HIM SHALL BE CHOSEN IN SUCH A WAY THAT THE BASIC SALARY SHALL BE EQUAL TO OR IMMEDIATELY ABOVE THAT OF HIS FORMER GRADE .

4 IF THIS IS NOT POSSIBLE THE OFFICIAL SHALL BE CLASSIFIED IN THE FINAL STEP OF THE NEW GRADE .

5 NEVERTHELESS IF THIS CLASSIFICATION ONLY AFFORDS HIM A BASIC SALARY LOWER THAN THAT WHICH HE WOULD HAVE RECEIVED IN HIS FORMER GRADE TAKING INTO ACCOUNT ANY AUTOMATIC INCREMENTS PROVIDED FOR BY ARTICLE 44 OF THE STAFF REGULATIONS, HE SHALL BE GRANTED A COMPENSATORY ALLOWANCE IN RESPECT OF THE DIFFERENCE .

6 MOREOVER IN THE SEVERAL MEASURES OF CLASSIFICATION ADOPTED IN RESPECT OF THE APPLICANTS, THE DEFENDANT DECIDED " THAT THE NOTIONAL SENIORITY IN THE STEP OF THE FORMER GRADE SHALL BE MAINTAINED FOR THE PURPOSE OF THE APPLICATION OF THE PROVISIONS OF ARTICLE 44 OF THE STAFF REGULATIONS " AND " THAT IN ANY CASE THE STEP AND SENIORITY THUS ACQUIRED IN THIS STEP SHALL BE TAKEN INTO ACCOUNT FOR THE APPLICATION OF THE PROVISIONS OF ARTICLE 46 OF THE STAFF REGULATIONS WHEN THE FIRST CHANGE OF GRADE IN THE NEW CATEGORY TAKES PLACE ".

7 THE APPLICANTS ALLEGE, IN THE FIRST PLACE, THAT THE CONTESTED DECISIONS WERE TAKEN IN DISREGARD OF ARTICLE 46, THE FIRST PARAGRAPH OF ARTICLE 62 AND ARTICLE 66 OF THE STAFF REGULATIONS AND THE PRINCIPLE WHEREBY THE MAINTENANCE OF THE LEVEL OF THE BASIC SALARY MUST BE ACHIEVED BY CLASSIFICATION IN THE APPROPRIATE GRADE AND STEP .

8 ARTICLE 46 OF THE STAFF REGULATIONS APPEARS IN CHAPTER 3 OF TITLE III, HEADED " REPORTS, ADVANCEMENT TO A HIGHER STEP AND PROMOTION " AND CONCERNS THE EFFECT OF ADVANCEMENT TO A HIGHER STEP AND PROMOTION .

9 PARAGRAPH 1 OF ARTICLE 45 DEFINES PROMOTION AS BEING APPOINTMENT TO THE NEXT HIGHER GRADE IN THE CATEGORY TO WHICH THE OFFICIAL BELONGS AND PARAGRAPH 2 THEREOF DISTINGUISHES IT FROM PROMOTION FROM ONE CATEGORY TO ANOTHER WHICH MAY ONLY TAKE PLACE ON THE BASIS OF A COMPETITION .

10 IT FOLLOWS THAT THE PROVISIONS OF ARTICLE 46 ARE NOT AS SUCH APPLICABLE TO CHANGE OF CATEGORY .

11 MOREOVER THEY ONLY CONCERN CLASSIFICATION IN STEP AND NOT IN GRADE .

12 UNDER ARTICLE 5 OF THE STAFF REGULATIONS, IN EACH CATEGORY OFFICIALS SHALL BE CLASSIFIED WITHOUT EXCEPTION IN CAREER BRACKETS COMPRISING ORDINARILY TWO GRADES .

13 THIS PROVISION LAYS DOWN A PRINCIPLE WHICH IS ONE OF THE GUIDING RULES OF THE STAFF REGULATIONS .

14 IT IS THEREFORE NOT POSSIBLE TO APPLY THE RULES CONTAINED IN ARTICLE 46 SOLELY FOR DETERMINING STEP IN CASES OF PROMOTION BY ANALOGY IN ORDER TO DETERMINE THE GRADE IN CASES OF CHANGE OF CATEGORY .

15 IN THIS RESPECT THEREFORE IT WAS POSSIBLE FOR THE CONTESTED DECISION TO PROVIDE THAT IN THE CASE OF APPOINTMENT TO A POST IN A CAREER BRACKET OF A HIGHER CATEGORY, THE OFFICIAL SHALL BE CLASSIFIED IN THE STARTING GRADE OF THAT CAREER BRACKET .

16 THE APPLICANTS ALLEGE THAT BY AUTHORIZING THE CALCULATION OF SALARY ACCORDING TO THE SCALE APPROPRIATE TO THEIR FORMER CAREER BRACKET THE GENERAL DECISION AT ISSUE DIVERGES IN THIS RESPECT FROM ARTICLE 62 OF THE STAFF REGULATIONS WHEREBY AN OFFICIAL IS ENTITLED TO THE REMUNERATION APPROPRIATE TO HIS GRADE AND STEP .

17 THIS CONTRADICTION SHOWS THAT THE SYSTEM ESTABLISHED BY THE COMMISSION IS CONTRARY TO THE STAFF REGULATIONS .

18 THIS LINE OF ARGUMENT CANNOT BE UPHELD .

19 REMUNERATION IS DEPENDENT ON THE GRADE AND THE POST NOT THE CONVERSE .

20 NEVERTHELESS THE ADMINISTRATIVE AUTHORITY MAY SEEK TO RECONCILE THE OBSERVANCE OF THIS PRINCIPLE WITH A CONCERN TO PROTECT THE PROMOTION OF AN OFFICIAL RESULTING IN HIS REMUNERATION BEING LOWER THAN THAT WHICH HE RECEIVED IN HIS FORMER POST .

21 WHILE SUCH AN EVENTUALITY CANNOT JUSTIFY DEROGATION FROM ARTICLE 5 OF THE REGULATIONS IN THE EVENT OF CHANGE OF CATEGORY SOLELY IN ORDER TO AVOID CAUSING FINANCIAL LOSS TO THE OFFICIAL CONCERNED, NEVERTHELESS IT DOES NOT PREVENT THE PROVISIONAL GRANT OF A COMPENSATORY ALLOWANCE TO THE OFFICIAL .

22 THE SUBMISSION MUST BE REJECTED .

23 THE APPLICANTS FURTHER ALLEGE THAT THE DECISIONS AT ISSUE WERE TAKEN CONTRARY TO ARTICLES 44 AND 46 OF THE STAFF REGULATIONS SINCE THE SYSTEM ADOPTED LEADS IN THE END TO THE CREATION OF AN ARTIFICIAL CAREER BRACKET FOR ADVANCEMENT AND SENIORITY .

24 WITH REGARD TO THE ADMISSIBILITY OF THIS SUBMISSION THE DEFENDANT STATES THAT WERE THE COURT TO DECIDE THAT CLASSIFICATION IN THE LOWER GRADE IN CASES OF CHANGE OF CATEGORY IS IN CONFORMITY WITH THE STAFF REGULATIONS, THE APPLICANTS WOULD HAVE NO INTEREST IN HAVING THE INDIVIDUAL DECISIONS ANNULLED IN SO FAR AS THEY MAINTAIN TO THEIR BENEFIT, THE ADVANCEMENT OF STEP IN THEIR FORMER GRADE WHICH IS AN ADDITIONAL ADVANTAGE .

25 NEVERTHELESS THIS SUBMISSION DOES NOT IN THE ALTERNATIVE, SEEK THE PARTIAL ANNULMENT OF THE CONTESTED DECISIONS AS THE DEFENDANT ASSUMES, BUT IS IN SUPPORT OF A REQUEST FOR THE ANNULMENT OF ALL THESE DECISIONS .

26 IN PARTICULAR IT SERVES TO SHOW THAT IN CASES OF TRANSFER TO A HIGHER CATEGORY THE GENERAL DECISION OF 10 MARCH 1971, BY DIVERGING FROM THE RULES LAID DOWN BY ARTICLE 46 OF THE STAFF REGULATIONS, LEADS TO INFRINGEMENTS OF OTHER PROVISIONS OF THE REGULATIONS, IN PARTICULAR OF ARTICLE 44 .

27 THE SUBMISSION IS THEREFORE ADMISSIBLE .

28 THE INDIVIDUAL DECISIONS AT ISSUE PROVIDE THAT " THE NOTIONAL SENIORITY IN THIS STEP " ( THAT IS TO SAY, THE STEP OF THE GRADE WHICH THE PARTIES CONCERNED FORMERLY HELD ) " SHALL BE MAINTAINED FOR THE PURPOSE OF APPLICATION OF THE PROVISIONS OF ARTICLE 44 OF THE STAFF REGULATIONS " AND " THAT IN ANY CASE THE STEP AND SENIORITY THUS ACQUIRED IN THIS STEP SHALL BE TAKEN INTO ACCOUNT FOR THE APPLICATION OF THE PROVISIONS OF ARTICLE 46 OF THE STAFF REGULATIONS WHEN THE FIRST CHANGE OF GRADE IN THE NEW CATEGORY TAKES PLACE ".

29 THIS SYSTEM HAS THE EFFECT OF ALLOWING THE OFFICIAL MOVING UP INTO A HIGHER CATEGORY TO BENEFIT FROM THE TWO-YEARLY INCREMENTS ATTACHED TO HIS FORMER POST AS IF HE WAS STILL THERE WHILST, APART FROM SUCH A FICTION, HIS REMUNERATION IN THE NEW GRADE WOULD STILL BE BELOW THAT WHICH HE WOULD RECEIVE ON ADVANCING IN STEP IN THE GRADE WHICH HE LEFT .

30 THE SITUATION THUS REMEDIED IS APPLICABLE TO ADVANCEMENT TO A HIGHER CATEGORY .

31 ONCE AGAIN THERE IS PERMISSIBLE RECONCILIATION OF THE GENERAL RULE THAT THE GRADE IN WHICH AN OFFICIAL IS PLACED FOLLOWING A CHANGE OF CATEGORY MAY NOT BE DETERMINED BY THE REMUNERATION WHICH HE RECEIVED PREVIOUSLY, WITH THE LEGITIMATE INTEREST OF THE OFFICIAL THAT SAVE IN EXCEPTIONAL CASES HIS PROMOTION SHALL NOT ENTAIL LOSS OF SALARY .

32 ALTHOUGH THIS CONSIDERATION WAS EXTENDED TO ITS EXTREME LIMITS IN FAVOUR OF THE APPLICANTS IN THIS CASE, IT MUST NEVERTHELESS BE ACCEPTED THAT THE CONTESTED DECISIONS HAVE NOT INFRINGED ARTICLE 44 OF THE STAFF REGULATIONS BY USING THE CONCEPT OF AN ARTIFICIAL CAREER BRACKET .

33 THE SUBMISSION MUST BE REJECTED .

34 FINALLY THE APPLICANTS ALLEGE THAT THE DECISION OF 10 MARCH 1971 AND THE INDIVIDUAL DECISIONS TAKEN IN IMPLEMENTATION THEREOF VIOLATE THE PRINCIPLE OF THE EQUALITY OF OFFICIALS UNDER THE STAFF REGULATIONS .

35 IN THIS RESPECT THEY CLAIM THAT AS FROM MARCH 1970 THE DECISION OF 10 MARCH 1971 IS APPLICABLE IN CASES OF ADVANCEMENT FROM CATEGORY B TO CATEGORY A FOR WHICH CLASSIFICATION OF GRADE AND STEP HAD BEEN RESERVED WHILST IT ONLY BECOMES APPLICABLE TO ADVANCEMENT FROM CATEGORY C TO CATEGORY B AS FROM 1 FEBRUARY 1971 .

36 SECONDLY THE APPLICANTS CLAIM THAT EVEN AFTER 1 FEBRUARY 1971 CHANGES OF CATEGORY TOOK PLACE IS DISREGARD OF THE RULES SET OUT IN THE DECISION OF 10 MARCH 1971 IN PARTICULAR FOR ADVANCEMENT FROM CATEGORY C TO CATEGORY B AND IN ADDITION IN THE CASE OF A SCIENTIFIC OFFICER WHO ADVANCED FROM GRADE B 3 TO GRADE A 7 IN CAREER BRACKET A 8 - A 5 .

37 THE FIRST PART OF THE SUBMISSION CONCERNS ADVANCEMENTS FROM CATEGORY C TO CATEGORY B AND CLASSIFICATIONS CARRIED OUT WHOLLY BEFORE THE ENTRY INTO FORCE OF THE GENERAL DECISION OF 10 MARCH 1971 .

38 THE POSITION OF THE OFFICIALS AFFECTED BY THIS MEASURE WAS THEREFORE DIFFERENT FROM THAT OF THE APPLICANTS IN CASES 55 TO 76/71 WHOSE CLASSIFICATION AND STEP WERE EXPRESSLY RESERVED .

39 WITH REGARD TO THE SECOND PART OF THE SUBMISSION, THE ADMISSION THAT THE ABOVEMENTIONED APPOINTMENTS TO GRADES B 4 AND A 7 RESPECTIVELY ARE PROVED TO HAVE INFRINGED THE DECISION OF 10 MARCH 1971, ENTAILS THE ILLEGALITY OF THOSE APPOINTMENTS BUT NOT NECESSARILY THE ILLEGALITY OF THE DECISIONS TAKEN IN ACCORDANCE WITH THE SAME GENERAL DECISION .

40 THE SUBMISSION AS TO DISCRIMINATION MUST THEREFORE BE REJECTED .

Decision on costs

41 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS, SAVE THAT UNDER ARTICLE 70 OF THOSE RULES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN ACTIONS COMMENCED BY OFFICIALS OF THE COMMUNITIES .

42 THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATIONS IN JOINED CASES 55 TO 76/71, 86/71, 87/71 AND 95/71;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .