Opinion of Mr Advocate General Mancini delivered on 9 March 1988. - Eckhard Sperber v Court of Justice of the European Communities. - Member of temporary staff - Probationary official - Classification. - Case 37/87.



European Court reports 1988 Page 01943



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . On 2 February 1987, Mr Eckhard Sperber, an official of the Court of Justice of the European Communities, brought an action seeking the annulment of : ( a ) the decision of 5 March 1986 by which the Court, as appointing authority, classified him in Grade L/A 6, step 3; and ( b ) the decision of 4 November 1986 whereby the committee of the Court responsible for such matters rejected his complaint concerning the decision appointing him .

The issue in this case is the interpretation of Article 32 of the Staff Regulations of Officials . The first paragraph states that "an official shall be recruited at the first step in his grade" and the second adds that "the appointing authority may, taking account of the training and special experience ... of the person concerned, allow additional seniority in his grade; this shall not exceed 72 months in grades A 1 to A 4, L/A 3 and L/A 4 and 48 months in other grades ".

2 . On 17 June 1983 Mr Sperber was placed on the reserve list of successful candidates in Open Competition CJ 15/82 for German-speaking translators ( Career bracket L/A 6 - L/A 7 ); in the absence of permanent posts, he was then offered a contract as a member of the temporary staff . He accepted the offer and was employed as from 3 October 1983 as a lawyer-linguist in Grade L/A 6, step 3 . Two years later, on 1 October 1985, Mr Sperber was placed in the next step in his grade .

A post subsequently became vacant in the German translation division and the Court appointed Mr Sperber as a probationary official with effect from 1 December 1985, classifying him first in Grade L/A 6 ( 20 and 21 November 1985 ) and then, within that grade, in step 3 ( 5 March 1986 ). The applicant complained about that classification, which in his opinion represented a demotion; but the complaint which he submitted to the appointing authority under Article 90 of the Staff Regulations was rejected on 4 November 1986 .

3 . In support of his application, Mr Sperber makes five submissions : ( a ) misapplication of Article 32 of the Staff Regulations; ( b ) breach of the principle of non-discrimination; ( c ) infringement of Article 5 ( 3 ) of the Staff Regulations; ( d ) disregard of the principles of good management, sound administration and fairness; and ( e ) infringement of vested rights .

The first and last submissions can be considered together because the applicant relies upon the same arguments for both . In breach - he claims - of the rule ne bis in idem, Article 32 was applied to him on two occasions : when he was engaged as a member of the temporary staff and again when he was appointed an official . The unlawful effects of the second application of that article are clear : it meant that the appointing authority, in evaluating his professional experience, did not take account of his employment at the Court and for the same reason demoted him, thus infringing his vested rights .

Mr Sperber considers that, instead, the appointing authority should have recognized that once he had passed the competition he was eligible to take up a permanent post immediately and should have deduced that his employment relationship did not commence on his appointment as an official but already existed, having come into being when the contract appointing him a member of the temporary staff was concluded . Far from making changes to the situation brought about by that contract, the decision appointing him, therefore, merely "regularized" the situation . The fact that that reconstruction reflects reality is, moreover, borne out by a number of factors : for example, Mr Sperber was not required to undergo a fresh medical examination and was assigned the tasks which he had already carried out as a member of the temporary staff .

But that is not all . By offering him a contract - the applicant observes - the Court failed to fulfil a commitment which it had given on 17 June 1981 that it would give permanent posts immediately to translators who had passed a competition . That commitment supports his argument in any event, and the judgments referred to in the decisions rejecting his complaint do not undermine his case ( Case 17/83 Angelidis v Commission (( 1984 )) ECR 2907; Case 146/84 De Santis v Court of Auditors (( 1985 )) ECR 1723 and Case 134/84 Williams v Court of Auditors (( 1985 )) ECR 2225 ). In those cases, in fact, the temporary staff contract was entered into before the persons concerned had passed a competition .

4 . The two submissions are unfounded . In the first place, success in a competition and consequent inclusion on a reserve list do not give a successful candidate any right to be appointed a probationary official . The reasons for this are clear . According to Article 4 of the Staff Regulations, no appointment is to be made "for any purpose other than that of filling a vacant post"; if there is a shortage of posts, it is impossible to make an appointment and the conclusion of a temporary staff contract - which is not compulsory in any case - becomes the only means available to the successful candidate of entering the service of the Communities . It is therefore absurd to describe that outcome as a breach of the commitment given by the Court in 1981; that commitment too is inescapably limited by the terms of Article 4 .

On the other hand, everyone knows that in the Community civil service the rules applicable to officials are clearly different from those applicable to other servants, whether they be temporary, auxiliary or local staff . Passage from the second category to the first therefore entails the creation of a new relationship and consequently prevents contracts for other staff - except as regards pension rights - from giving rise to any rights which an employee who becomes an official may rely upon as "vested rights ". For the same reasons, Mr Sperber' s reference to the rule ne bis in idem must be rejected : the applicant was indeed classified on two occasions, but - and this is the important point - for different purposes and with respect to two statuses between which there was no continuity .

Furthermore, the difference which Mr Sperber perceives between his case ( employment as a member of the temporary staff following a competition ) and those with which the Angelidis and De Santis judgments were concerned ( competition passed after recruitment ) is real, but is certainly not so great as to render the latter cases irrelevant . In fact, they lay down principles which are general in scope and are therefore applicable to all situations where there is a transition from the status of temporary or other staff to that of official . Thus, it is stated in Angelidis that "the position of an employee who has become an official of the Community for the first time" is governed by Article 32 ( paragraph 12 of the judgment ); and in De Santis it is stated that "no provision of the Staff Regulations allows account to be taken, in the form of accumulated seniority ..., of a period during which an official previously served his institution as a member of its temporary staff" ( paragraph 17 of the judgment ).

Indeed, the professional experience acquired by the applicant before being appointed an official, and thus also during the contractual phase of his employment with the Court, could only be taken into account on the basis of Article 32 . However, we know ( a ) that that provision authorizes the appointing authority to grant additional seniority which, in Grade L/A 6, may be of up to two steps ( 48 months ); and ( b ) that Mr Sperber enjoyed that benefit in full and that, even if he had had greater experience, he could not have obtained more . No doubts can therefore exist as to the lawfulness of his classification .

5 . In his second submission, Mr Sperber states that, by depriving him of a step at the time of his appointment, the Court discriminated against him ( a ) by comparison with the other candidates in his competition who were immediately offered a permanent post ( that observation is repeated in the third submission concerning infringement of Article 5 ( 3 ) of the Staff Regulations ); ( b ) with respect to the translators who came before him, in so far as they benefited from the practice previously followed by the Court, which consisted in recognizing officials' seniority acquired as members of temporary staff; and ( c ) with respect to an official in Category A for whom the Court made a retroactive appointment which therefore involved recognition of the appropriate seniority .

Let me say straight away that none of those three allegations appears to me to be well founded . The first overlooks the fact that the candidates appointed as officials immediately after the competition were placed higher on the reserve list than Mr Sperber; by giving them priority the appointing authority thus applied a rational criterion and, in any event, did not infringe the principle laid down in Article 5 ( 3 ), which requires equality of conditions regarding recruitment and career development . Moreover, there was no discrimination with respect to translators recruited earlier . The practice to which Mr Sperber refers was not in fact departed from in his particular case, but was modified on a general and abstract basis following the interpretation of Article 32 given in the Angelidis, De Santis and Williams judgments .

The applicant' s third observation ( ( c ) supra ) is likewise not persuasive; but because, at the hearing, counsel for the applicant developed that argument when dealing with the fourth submission, I shall wait until my consideration of the latter submission to show that it is unfounded .

6 . The fourth submission alleges breach of the principles of good management, sound administration and fairness . Mr Sperber states that the Court promised to recognize the seniority accruing to him as a member of the temporary staff; however, it failed to fulfil that commitment and is therefore obliged today, if only because of the exceptional nature of the applicant' s situation, to grant that benefit to him . Such a measure would be in conformity with the practice adopted by the other institutions . What is more important, the principles of substantive justice upon which that measure would be based were approved in the case just mentioned in which a retroactive appointment was made .

That submission is no more acceptable than the others . The applicant himself admitted at the hearing that the appointing authority made no promise to him, either when entering into the temporary contract or during the next two years . Thus, there is no foundation whatsoever for his claim that, as a matter of fairness, he should have been appointed with retroactive effect . That is also the view of the defendant institution, although the latter relies upon insubstantial arguments, like the lack of vacant posts when Mr Sperber was recruited, or what might be described as masochistic arguments, such as the advisability of not repeating in the applicant' s case a decision which might be unlawful .

The real situation is different . There is nothing unusual about Mr Sperber' s case because he did not suffer damage as a result of his position as a member of the temporary staff but secured an advantage : he benefited from the practice according to which the Court appoints as officials other servants on a reserve list before those persons who, although higher on the list, refused the offer of temporary employment until a post fell vacant . By contrast, what was exceptional was the situation which prompted the appointing authority to make the appointment in question . As is apparent from the documents before the Court, that decision was taken to compensate for the considerable delay which, as a result of errors or negligence on the part of the administration, had occurred in the filling of the post .

To conclude, I shall merely state that the practice followed by the other institutions to which Mr Sperber referred conflicts with Article 32 as interpreted by the judgments of the Court cited earlier .

7 . In view of the foregoing considerations I propose that the Court should dismiss the application brought by Mr Eckhard Sperber against the Court of Justice of the European Communities and, pursuant to Article 70 of the Rules of Procedure, order the parties to bear their own costs .

(*) Translated from the Italian .