CELEX: 61984CC0138
Language: en
Date: 1985-05-15
Title: Opinion of Mr Advocate General Lenz delivered on 15 May 1985. # Eleni Spachis v Commission of the European Communities. # Appointment of an official - Grading. # Case 138/84.

OPINION OF MR ADVOCATE GENERAL LENZ
      delivered on 15 May 1985 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               A. 
            
            
               The applicant in the action which I am to consider today successfully took part in Open Competition No COM/A/301, organized by the Commission, and was therefore in August 1980 included on the list of successful candidates drawn up by the Selection Board. She subsequently took part in another open competition organized by the Commission, No COM/LA/331, in which she was again successful, and was accordingly placed on the list of successful candidates by the Selection Board in October 1981. At that time (more precisely, between September and December 1981), she was apparently, employed as a trainee in Directorate Generál XI of the Commission.
               As a result of her success in the second competition referred to, the applicant was able to take advantage of a vacancy which arose at that time in the Language Service of the Commission. By a decision of 25 January 1982, she was appointed a probationary translator with effect from 14 December 1981 and classified in Grade LA 7, Step 2. She was later established in that post with effect from 14 September 1982 by a decision of 22 September 1982.
               Shortly before that date Vacancy Notice No COM/1207/82 was published, relating to the post of an administrator in Career Bracket A 7/6 in the Directorate General for Science, Research and Development. Owing to her previous experience, the applicant was more interested in that type of work than in the work of a translator and she therefore applied for the post. She was appointed to the post with effect from 1 December 1982, by a decision of 13 December 1982 (which was apparently not communicated to her until 6 January 1983), on the basis of her successful participation in Competition No COM/A/301. Her grading (at Grade A 7, Step 2) was unchanged; the decision stated that her seniority in that grade dated from 1 December 1981.
               The applicant considers that at that stage the special experience which she had acquired over a period of more than nine years and which had no bearing upon her appointment as a translator, ought to have been taken into account, on the basis of the Decision of the Commission of 6 June 1973, adopted inter alia under Articles 31 and 32 of the Staff Regulations of Officials, on the criteria applicable to step and grade classification upon recruitment. On 1 March 1983 she therefore requested the appointing authority, in view of the experience which she claimed to have obtained in administration from 1973 onward (and which she set out in detail), to be classified in Grade A 6.
               As the applicant received no reply (which must be deemed to be an implied decision rejecting her request), she on 29 September 1983 submitted a complaint to the appointing authority. In it, she again expressed the view that because of her special experience she ought to be graded in A 6, Step 1, with one year's seniority in step.
               That complaint was expressly rejected by a decision communicated to the applicant on 23 February 1984, stating that, because the applicant had already been established by a prior decision, the decision of 13 December 1982 could not be regarded as an appointment within the meaning of Articles 31 and 32 of the Staff Regulations (and for that reason the applicant had not been required to serve a probationary period). Therefore Articles 31 and 32 of the Staff Regulations and the related Commission Decision of 1973 could not be applied on that occasion.
               On 23 May 1984 the applicant lodged an application with the Court of Justice, claiming the annulment of the decision of 13 December 1982 in so far as it classified her in Grade A 7, Step 2, and, so far as necessary, the express rejection of her complaint.
               In support of her claim and to prove that Article 3 of the Commission Decision of 6 June 1973, which provides that appointment may be made to Grade A 6 if the candidate gives evidence of professional experience of at least eight years, ought to have been applied in her case, the applicant argues that ‘appointment’ within the meaning of Article 31 of the Staff Regulations covers not only the original recruitment but also any appointment to a post which signifies the beginning of a new career (if the person concerned has special experience which was not taken into consideration at the time of the original recruitment). She also refers to Article 4 of the Staff Regulations, from which it is clear that a post can be filled only by appointment or promotion. If a transfer to a new post cannot be regarded as promotion — as in the applicant's case it cannot (because she was not promoted to a higher grade after consideration of the comparative merits of several candidates, but was instead transferred from the Language Service to Category A on the basis of a competition) — it must therefore be regarded as an appointment. In addition, the application refers to the principle of equality of treatment, contained in Article 5 (3) of the Staff Regulations (which provides that identical conditions of recruitment and service career are to apply to all officials belonging to the same category or the same service). That principle requires that she should be treated in the same way as other candidates in Competition No COM/A/301, and in particular in the same way as external candidates. If the criteria laid down in the 1973 Decision in order to ensure ‘identical conditions of recruitment and service career’ are applicable to them, they must also apply to the applicant, whose special experience is relevant to an administrative post and could not be taken into account on her appointment as an established official.
               The Commission does not regard that argument as conclusive. In its opinion, the appointment of 13 December 1982 cannot be regarded as a ‘recruitment’ within the meaning of Article 27 of the Staff Regulations, because at that time the applicant was already an official of the Communities. It argues that Articles 31 and 32 of the Staff Regulations and the 1973 Decision can in reality be applied only once, namely at the time of theoriginal recruitment. If it is so applied, there can be no question of breach of the requirement of equality of treatment. It is impossible to compare the situation of the applicant with that of external candidates: there is an essential difference, because the applicant was already an official, as shown by the fact that she did not have to complete any further probationary period.
            
         
               B. 
            
            
               In my view that difference of opinion calls for the following remarks.
               
                        (a)
                     
                     
                        As the Court is aware, it is not the first time that this problem has arisen in an action before the Court, and although previous cases concerned the application of Article 32 of the Staff Regulations, which provides that additional seniority may be allowed in grade on account of special experience for the post in question, that difference is not crucial.
                        In that regard the Second Chamber of the Court stated in a judgment of 12 July 1984 in Case 17/83 (
                              1
                           ) (to which reference was made chiefly by the Commission) that the purpose of Article 32 of the Staff Regulations is ‘to govern the position of an employee who has become an official of the Community for the first time as a result of a recruitment procedure which will normally have been a competition’ (paragraph 12); that suggests the conclusion that that provision, like Article 31 of the Staff Regulations and the related Commission Decision, could not be applied in the case of an official who is appointed to another post on the basis of his participation in a competition.
                        The First Chamber apparently departed from that in its judgment of 15 January 1984 in Case 266/83, (
                              2
                           ) which concerned an official in Grade C 5 who, after taking part in an open competition, obtained a post in Grade C 3. The applicant in that case claimed that she should be classified in a higher step on the basis of the experience which she had obtained before entering the service of the Commission, as permitted by Article 32 of the Staff Regulations, and that the rule on promotion laid down in Article 46 should not be applied. In deciding the case, the Court stated (in paragraph 13) that the Staff Regulations did not contain any provisions governing the classification in step of an official appointed to another post following an open competition. However, an application by analogy of Article 32 of the Staff Regulations was indicated where such an appointment could not, in view of the differences in duties, be part of the normal development of the applicant's career (paragraph 15). The Court also stated that it should be recognized that in such a case, where an official was in direct competition with outside candidates rather than with candidates who were eligible for promotion, the principle that the participants in an open competition deserved equal treatment took precedence and also led to the application of Article 32 of the Staff Regulations (paragraph 15).
                        Finally, I should also mention the judgment of the Second Chamber in Case 273/83, (
                              3
                           ) which was decided shortly afterwards (on 29 January 1985) and which concerned the transfer of an official in Category B to Category A. The applicant claimed that he should be classified in a higher step in his grade, by virtue of Article 32 of the Staff Rgulations, and not in the step resulting from an application of Article 46 of the Regulations. The Court again decided that the application of Article 32 had rightly been refused and referred in particular to the purpose of that provision — to take account of the experience obtained before entry into service of an official of the Communities (with regard to which it must be remembered that the applicant in that case was able to continue his studies and obtain a degree during his service with the Communities and so gained entry to Category A). It was also stressed in that case that there was no discrimination as compared with external candidates, in particular in view of the advantages existing for officials (exemption from the age-limit and the probationary period), which constituted a special situation.
                     
                  
                        (b)
                     
                     
                        If then the question arises, as it does in this case, as to whether the applicant's special experience in administration, which was not taken into account on her appointment as a translator (a post for which the applicant had no relevant experience), must be taken into account on her transfer to administration in accordance with Article 31 of the Staff Regulations andthe related Commission Decision of 1973, possibly — as it is for the Commission to decide — resulting in the applicant being graded in Grade A 6, the correct answer is in my view obvious from the opinion which I gave in Case 273/83. (
                              4
                           )
                        In that case I supported the position which was also adopted by the Court (by application of Article 46 of the Staff Regulations), to the effect that experience is in principle to be taken into account only once, at the time of recruitment into the Community service, and that it would in general not meet the purpose of Article 5 of the Staff Regulations if experience were taken into account more than once, especially if it has partly been obtained in Community service, in connection with participation in an open competition. However, I added the following remark: ‘A different assessment would perhaps be conceivable if specific experience which it was not possible to take into account for a particular kind of activity (for example, translating) were wholly relevant to another type of activity (for example, administration) and therefore ought to be taken into account’.
                        The Court is obviously dealing with such a case here. Therefore I consider it right to seek a solution in the principles laid down in the judgment in Case 266/83. (
                              5
                           ) That may be done without departing from the later case (which would require consideration by the Full Court); for it must not be overlooked that the essential factor in that later case was that it did not concern experience obtained prior to entry into Community service. Such a solution is called for especially because this case does not concern higher grading on account of previous experience claimed some time after entry into service, and in the applicant's case there is quite obviously no question of its being normal career development, because she — after training and working as an engineer — first began a career as a translator in the Community and then, when offered an opportunity a short time afterwards of working in her own field, obtained a transfer.
                     
                  
                        (c)
                     
                     
                        Without it being necessary to consider the further arguments of the applicant (she also claims that the Commission ought, in accordance with its duty to have regard to the interests of officials, to have informed her of the consequences which might in its view follow, as regards Article 31 of the Staff Regulations, from the acceptance of a post of translator in the event of a transfer to another department), it can thus be concluded that the decision on the appointment of the applicant as an administrator in the Directorate General for Science, Research and Development is defective in so far as it graded the applicant, because the Commission failed to consider the application of the Decision of 6 June 1973 which might permit the applicant to be classified in Grade A 6, on account of her special experience.
                        The application must therefore be accepted and the defendant must be ordered to pay the costs.
                        Owing to the applicant's detailed claim for costs, I consider it worth mentioning that there is of course no need at this stage to order the Commission to pay the travel and subsistence expenses incurred for the purpose of the proceedings and the remuneration of the applicant's lawyer. In the event of a dispute concerning the recoverable costs, a detailed order in relation to Article 73 (b) of the Rules of Procedure (which deals with the recoverable costs) can in any event be made in accordance with Article 74 of the Rules.
                     
                  
         
               C. 
            
            
               In conclusion, I propose for the reasons which I have set out above that the decision of 13 December 1982 should be annulled, in accordance with the applicant's claim, in so far as it classifies her in Grade A 7, Step 2, and that the Commission should be ordered to pay the costs.
            
         (
            *1
         )	Translated from tlic German.
      (
            1
         )	Judgment of 12 July 1984 in Case 17/83 Angelidis v Commiliion [1984] ECR 2907.
      (
            2
         )	Judgment of 15 January 1985 in Case 266/83 Samara v Commission [1985] ECR 196.
      (
            3
         )	Judgment of 29 January 1985 in Case 273/83 Michel v Commission [1985] ECR 354.
      (
            4
         )	Judgment of 29 January 1985 in Case 273/83 Michel v Commission [1985] ECR 354.
      (
            5
         )	Judgment of 15 January 1985 in Case 266/83 Samara v Commission [1985] ECR 196.