CELEX: 61983CC0020
Language: en
Date: 1984-03-22
Title: Opinion of Mr Advocate General Darmon delivered on 22 March 1984. # Aristides Vlachos v Court of Justice of the European Communities. # Official - Concepts of "promotion" and "recruitment". # Joined cases 20 and 21/83.

OPINION OF MR ADVOCATE GENERAL DARMON
      DELIVERED ON 22 MARCH 1984 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               Following an ad hoc selection procedure Aristides Vlachos was engaged on 15 September 1980 as a lawyer-linguist in the translation service of the Court of Justice of the European Communities which offered him a contract as a member of the auxiliary staff in Category All, Class 4. In his reply he expressed his disappointment at that grading and pointed out that his professional experience in Greece (as a judge and later as an advocate) suggested that he should be appointed to a higher grade. However, he accepted the Court's proposal when it wrote to him on 28 August 1980 and assured him that (after the 1981 Budget was adopted)
               “the best lawyer-linguists will have the opportunity to be appointed as revisers (Grade L/A 5)”.
               Mr Vlachos was appointed as a member of the temporary staff in Grade L/A 6, Step 3, on 1 January 1981. From 1 April 1981 he was made a reviser ad interim in Grade L/A 5, Step 1, for a period of six months. After passing internal competition No CJ 14/81 he was appointed as a probationary official in the capacity of lawyer-linguist from 1 October 1981 and classified in Grade L/A 6, Step 3. He was reappointed as a lawyer-reviser by the same decision and he received an allowance covering the difference between his remuneration in Grade L/A 6 and the remuneration which he would have received in Grade L/A 5, in which he had been previously classified (Article 7 (2) of the Staff Regulations).
            
         
               2. 
            
            
               He considered however, that the Court of Justice had still not fulfilled the assurances given in the letter of 25 August 1980. Consequently, on 20 January 1982, he submitted a request to be established as a lawyer-reviser (Career Bracket L/A 5 - L/A 4).
               Although at the end of the probationary period prescribed by Article 34 (1) of the Staff Regulations the applicant was appointed on 30 June 1982 as an established official in the capacity of lawyer-linguist as from 1 July 1982 and classified in Grade L/A 6, Step 3, he brought an action on 10 February 1983 (registered under number 21/83) in which he asked to be established in Step 4 of Grade L/A 5.
               At the same time he brought a second action on 8 February 1983 (registered under number 20/83) against a decision of 29 June 1982, adopted after he had passed a second competition, No CJ 149/81, held in 1982 to recruit five lawyer-revisers. By that decision the appointing authority
               appointed him as from 1 July 1982 as a Greek-language lawyer-reviser in the Translation Division and promoted him from Grade L/A 6, Step 3, to Grade L/A 5, Step 1, with seniority in that step backdated to 1 September 1980.
               In the second application he asked to be classified in Grade L/A 4 or, alternatively, in Step 4 of Grade L/A 5. He is at present classified in Step 2 of that grade by virtue of the biannual advancement in step provided for by Article 44 of the Staff Regulations.
            
         
               3. 
            
            
               As regards both the submissions contained in them and their subject-matter, the two applications lodged by Aristides Vlachos require the same question to be decided: in the case of an internal competition (Article 29 (1) (b)), may the appointing authority apply the provisions of the Staff Regulations relating to the advancement of officials by way of promotion (Article 45 (1) and Article 46) in order to determine the grading of successful candidates?
               However, it must be pointed out that the first action was brought at a time when the applicant was unaware when he first submitted his complaint on 28 July 1982 of the decisions of 29 and 30 June 1982, which were notified to him on 5 October 1982, whilst the second action is directed against the first of those two decisions.
               Therefore in his application in Case 21/83 Aristides Vlachos asks to be established and graded as from 20 January 1982, the date on which he submitted his request, regardless of the two aforementioned decisions. Success in that action would thus make the principal claim in Case 20/83 well founded.
               The two cases must therefore be considered in turn.
            
         
               4. 
            
            
               In his application in Case 21/83 Aristides Vlachos advances two series of submissions based, on the one hand, on the assurances given to him by the appointing authority about his grading and, on the other hand, on the application of Articles 31 and 32 to determine his grade and step.
               The applicant considers that the appointing authority's assurances created a legitimate expectation on his part which was not fulfilled. He relies in this regard on the assurances to be found in the letter of 25 August 1980 which were borne out by his appointment ad interim as a lawyer-reviser as from 1 April 1981 and by the reports of the Selection Board in competition No CJ 14/81 and competition No CJ 149/81; in accordance with the condition set out in the aforementioned letter, those competitions proved that he was indeed one of the “best lawyer-linguists” in the Greek Translation Division.
               I do not think that those points can be accepted. The letter of 25 August 1980 was intended to allay the misgivings of the applicant, who was disappointed at having been engaged as a member of the auxiliary staff in Category A II, Class 4, by pointing out that that situation was only temporary because of the current budgetary situation. It offered the prospect of a career in the new language division once budget funds had been appropriated; normally his engagement would lead to his appointment as a lawyer-linguist in Grade L/A 6 and, if he was one of the best of those appointed, possibly as a lawyer-reviser in Grade L/A 5.
               Therefore, that letter, which was signed by the Deputy Director of Administration, had no other purpose than to inform the applicant and in no way committed the appointment authority to appoint him to the grade that he sought within a fixed period of time in disregard of the provisions contained in the Staff Regulations, which alone determine the procedures which the appointing authority must follow when appointing officials of the European Communities. Such appointments cannot be the outcome of an agreement because the relationship between the staff of an institution and the appointing authority is not contractual but statutory. (
                     2
                  )
               As regards the applicant's regrading in Grade L/A 5, Step 4, before the decisions of 29 and 30 June 1982 were adopted, it is thus necessary to examine the second group of submissions put forward by Mr Vlachos.
               The submissions based on Articles 31 and 32 of the Staff Regulations seem to me to be irrelevant having regard to the actual purpose of the application. As is quite plain from the preamble to the appointing authority's decision of 11 and 25 November 1981, after competition No CJ 14/81 the applicant was appointed as a probationary official and classified in Grade L/A 6, Step 3, in accordance with Articles 27 to 34 of the Staff Regulations. Thus two derogations were applied: in accordance with the consistent practice of the institution and as is allowed by Article 31 (2), he was appointed to the higher grade of the career bracket in which he had been recruited by internal competition (L/A 7 -L/A 6) and in application of Article 32 (2) he was graded in Step 3 in view of his professional experience. The applicant has in fact admitted that his grading at the end of that competition was governed by the aforementioned provisions; even so, he has maintained his claim to be established in a higher grade and step.
               However, he could be established only on the expiry of the compulsory probationary period provided for in Article 34 (1), i.e. on 1 July 1982, and that is precisely what the appointing authority decided to do on 30 June 1982.
               Without any competition, a grading in L/A 5, Step 4, was not possible except upon the application of Articles 45 and 46 governing the advancement of officials. However, as both the appointing authority and the applicant have recognized, those provisions were not applicable at that time because the applicant was not established (second paragraph of Article 45 (1)).
               The applicant's appointment as a probationary official in Grade L/A 6, Step 3 cannot therefore be regarded as a capitis deminutio. Even though the fact that he had been exercising the functions of a lawyer-reviser on a temporary basis enabled him to be classified until then in Grade L/A 5, Step 1, pursuant to the third paragraph of Article 10 of the Conditions of Employment of Other Servants of the European Communities, the wording of the notice of competition and the provisions of the Staff Regulations left the appointing authority no other choice. Moreover, from 1 October 1981, the applicant received a differential allowance under Article 7 (2) of the Staff Regulations precisely on account of his change of grade.
               Those considerations lead me to conclude that the application in Case 21/83 should be dismissed.
            
         
               5. 
            
            
               This brings me to the essential question which I mentioned earlier and which is at the heart of the second case: may the appointing authority apply the provisions governing the determination of the grade and step of a promoted official (Article 45 (1) and Article 46 of the Staff Regulations) when grading an official who is appointed after an internal competition to occupy a post created in the category to which he belongs?
               I will briefly set out the parties' submissions on that question and then give my own view.
               The applicant takes the view that his appointment on 29 June 1982 as a lawyer-reviser as a result of his passing internal competition No CJ 149/81 constitutes recruitment and that he should therefore be graded in accordance with Articles 31 and 32 of the Staff Regulations. However, under certain conditions, Article 31 (2) and the second paragraph of Article 32 enable the appointing authority to vary the grading of candidates in the light of their professional experience. On the other hand, Articles 45 and 46 (concerning promotion) permit no such derogation, the classification of officials being determined independently of their professional experience since that experience will normally have been taken into account under the conditions referred to above. Consequently, Articles 31 and 32 are more favourable than Articles 45 and 46. To support his view, the applicant advances three arguments:
               
                        (i)
                     
                     
                        He was recruited: the concept of recruitment cannot be limited to the situation in which a person is engaged by an institution for the first time; it must be understood in a broad sense as meaning all methods of filling posts; (
                              3
                           )
                     
                  
                        (ii)
                     
                     
                        He cannot be regarded as having been promoted: the appointing authority could not “combine” Article 29 with Articles 45 and 46 on the ground that he already had a statutory relationship with the Court of Justice of the European Communities without violating the scheme of the Staff Regulations. Moreover, as the appointing authority has itself acknowledged, the applicant does not meet the condition of seniority laid down in the second sentence of Article 45(1);
                     
                  
                        (iii)
                     
                     
                        The application of the provisions governing promotion gives rise to discrimination in two ways — within the institution itself and in comparison with the consistent practice of other institutions — which is contrary to the principle of equal treatment laid down in Article 5 (3) of the Staff Regulations.
                     
                  The appointing authority's defence submissions follow in their structure the applicant's argument:
               
                        (i)
                     
                     
                        It contends that the concept of recruitment must be interpreted strictly. On this point the appointing authority refers to the Opinion of Mr Advocate General Lagrange in the Lassalle case. (
                              4
                           )
                        Consequently, recruitment can only refer to the first establishment of a contract of employment with the European Communities so that any member of staff already statutorily bound to the Communities is no longer covered by the rules governing grading after recruitment. In any case, even supposing that Article 32 is applicable, the appointing authority has a discretion in granting additional seniority.
                     
                  
                        (ii)
                     
                     
                        Article 46 is applicable not only in cases in which the condition of seniority laid down in Article 45 (1) is met but also, by analogy, when, that condition not being met, the appointing authority holds an internal competition in order to make appointments to a higher grade in the same category or in the same service. According to the interpretation consistently followed by the Court and by the other Community institutions, a move to a higher grade within the same service or category constitutes promotion, however it may take place.
                     
                  
                        (iii)
                     
                     
                        The application of Article 46 is in the official's own interests: if the conditions of seniority laid down in Article 45 (1) was applied strictly, officials would have to wait between 6 months and two years before Article 46 could be applied.
                     
                  
         
               6. 
            
            
               The parties' conflicting interpretations of the provisions of the Staff Regulations make it necessary to adopt a step-by-step approach to the question of determining the provisions of the Staff Regulations which are applicable to the applicant's grading. The scope of application of the recruitment procedure and of the promotion procedure, as established by the Staff Regulations, must first be defined; it will then be possible to determine the rules relevant to the grading of the applicant.
               In explaining the context and the meaning of the provisions of the Staff Regulations relating to recruitment and promotion, Mr Advocate General Lagrange emphasized the specific character of those two procedures, as is clear from both the terms and the general scheme of Chapters 1 and 3, which govern their application. (
                     5
                  ) Mr Advocate General Reischl reached the same view. Although the concept of recruitment or appointment “embraces all possible forms of appointments to posts”, (
                     6
                  ) it must be distinguished from promotion. The conclusion to be drawn from the views of the Advocates General is that the characteristic features of the two procedures must be sought in their respective aims.
               Save in exceptional cases (Article 29 (2) of the Staff Regulations), recruitment takes place by competition. That is clear not only from the structure of Article 29 (1), which lays down the principle of recruitment by open competition, but also from Article 45 (2), which requires a competition to be held before an official may be transferred from one service to another or promoted from one category to another. Moreover, the Court has confirmed that in such a case the appointing authority has no power, owing to the exceptional character of Article 29 (2), to resort to another procedure, (
                     7
                  )
               Promotion governs the subsequent advancement of an official within his category or his grade. Consequently, since the official's aptitude is established at the time of his recruitment, promotion will take place at the option of the appointing authority. That presupposes, however, that the official recruited first demonstrates his abilities within the category or service to which he was first appointed. It is for that reason that a minimum period is required to allow the comparative merits of the officials concerned to be considered (second paragraph of Article 45 (1)), even in the case of a change of service or category. (
                     8
                  )
               The characteristic features of those two procedures explain the special place which promotion occupies among the various methods by which the appointing authority can fill a vacant post. According to Article 29 (1) (a), promotion is in fact the first possibility which the appointing authority must consider together with the possibility of transfer. That order of preference is the very expression of the principle that recruited officials are entitled to reasonable career prospects. (
                     9
                  ) In fact there would have been a certain contradiction in this case if the possibility of promotion had been excluded in favour of recruitment whilst maintaining the principle of eligibility for promotion after recruitment, as that principle can be deduced from the general scheme of Title III of the Staff Regulations on the establishment and progress of an official's career (Chapters 1 to 4).
               The reason why I have considered it necessary to dwell on the differences between the two procedures is that they indicate the different purposes for which they were established. Whereas recruitment represents the entry into a category or service of the European civil service, promotion governs the progress of a career thus commenced within the category or the sewice to which the candidate has been appointed. The provisions on recruitment therefore regulate entry into the service of the Communities and, more generally, in the words of Mr Advocate General Lagrange, “access to a new service or to a new category” (
                     10
                  ) whereas promotion is to enable the official to advance in the career thus commenced.
               Having thus defined the field of application of the two procedures, I have a better grasp of the practice of the institutions which, as the present case shows, are sometimes so original that it makes it difficult to apply the various provisions I have considered in a strictly alternative manner.
            
         
               7. 
            
            
               The decision of 29 June 1982 both appoints and promotes the applicant; its preamble refers in fact to Article 29 and to Articles 45 and 46. It therefore deals with a case which, in relation to the typical situations examined above, is “intermediate”. It applies the rules for grading a promoted official to the case of an official who has been appointed within his category (L/A) to new duties (lawyer/reviser) after passing internal competition No CJ 149/81.
               One preliminary observation which must be made here is that no provision of the Staff Regulations prohibits the internal competition procedure from being used in such a case, particularly as in the present case there was no other possibility for the officials concerned to advance in their career. Promotion requires that the minimum period laid down in Article 45 (1) has expired and an appointment to a higher grade or transfer was ruled out (Article 7 (1) of the Staff Regulations). In my view the appointing authority did not therefore exceed its discretion for choosing the most appropriate procedure for filling vacant posts. (
                     11
                  )
               However — and this is my second observation — that conclusion leaves the question of which grading rules are to be applied entirely unresolved: in a case concerning the appointment of an official after an internal competition could the appointing authority grade him by applying Article 45 (1) and Article 46 or did it have to apply Articles 31 and 32 concerning grading after recruitment?
            
         
               8. 
            
            
               That question should, I think, be answered as follows: Articles 31 and 32 are not applicable to the applicant's case; however, the specific circumstances of this case make it not only possible but desirable that the rules on promotion should be applied by analogy.
               The application of Articles 31 and 32 would not necessarily lead to the result desired by the applicant and is inappropriate to the subject-matter of the contested procedure.
               If it is decided to apply the grading rules laid down in Articles 31 and 32, the appointing authority is still not obliged to accord the applicant a higher grading. Under Article 31 (1) and the first paragraph of Article 32 the applicant was in principle to be classified in the starting grade of the career bracket he had asked for, in this case, Grade L/A 5, Step 1; however, the derogations provided for in Article 31 (2) and the second paragraph of Article 32 are applied at the discretion of the appointing authority. It is certainly true that the appointing authority would have been bound to apply those derogating provisions to the applicant if that was the institution's consistent practice; otherwise, unless the situation was objectively different, it would have infringed the principle of the equal treatment of officials belonging to the same category or service laid down in Article 5 (3) of the Staff Regulations. However, since the applicant has not been able to prove the existence of such discrimination, this submission cannot succeed.
               In any event, in my view those provisions are entirely inapplicable in this case.
               The applicant cannot be treated as a “recruited” official when, far from entering a new category or service, he is advancing by way of an internal competition within Category L/A in which he has been a probationary official since 1 October 1981. In a sense, far from starting a new career in the European Civil service in a different service or category, the applicant has advanced in the category which he entered as an official on 1 October 1981.
            
         
               9. 
            
            
               On the other hand, a number of factors suggest that the provisions on the grading of promoted officials should be applied by analogy.
               The appointing authority had recourse to the disputed procedure because a direct application of Article 45 (1) was not possible. Of course, the fact that the rules contained in the Staff Regulations are insufficient to deal with a situation such as that in the present cannot by itself justify the application by analogy of Articles 45 and 46: it remains to be ascertained whether it is consistent with the aim, conditions and effects of the promotion procedure and whether it is necessary.
               If the applicant's situation is compared to the normal case dealt with in Article 45 (1), a similarity becomes apparent. In both cases, the officials are chosen from within the same category for appointment to the grade immediately above the grade they previously occupied. Moreover, the procedure employed by the appointing authority is consistent with the principle of reasonable career prospects and the order laid down in Article 29 (1): having found that it was impossible to proceed by promoting or transferring officials in Category L/A, the appointing authority had recourse to the internal competition procedure in order to arrive at an identical result and build up the Greek Language Service.
               The decision of the appointing authority thus appears to me to be consistent with the spirit and the purpose of Article 45 (1) in so far as it gives preference to satisfying the expectancy of officials in a given category to be promoted to the next higher grade in that category. There is no breach of Article 45 (1) if, in this case, the successful candidates in an internal competition who are appointed as lawyer-revisers are promoted to the next highest grade in their category and to a step corresponding to their seniority, especially since that procedure was chosen in the interest of all the lawyer-linguists concerned. The appointing authority could in fact have chosen other possible solutions available to it under Article 29(1), such as transfer or an inter-institutional competition. By opting for an internal competition, it enabled the best lawyer-linguists to advance more rapidly in their career. Furthermore, it is not disputed that it acted in the interest of the service.
               In a consistent line of decisions the Court has held that the appointing authority has a wide margin of discretion as regards its internal organization, (
                     12
                  ) which is why it has a choice as to the most appropriate method of filling a vacant post. In this case, the purpose of the rapid procedure chosen by the appointing authority was to form the Greek Language Translation Division within a short time around the two career brackets of lawyer-linguist (L/A 7-L/A 6) and lawyer-reviser (L/A 5-L/A4), relying for this purpose on members of staff who had already been recruited before Greece's accession on 1 January 1981. The method chosen by the appointing authority for appointing and promoting the applicant is explained by its desire to establish the Greek Language Service quickly while respecting the principle of reasonable career prospects, which led it to adopt a competition procedure anticipating promotion.
               That finding brings me to the end of my examination of the lawfulness of the application by analogy of Articles 45 and 46. The applicant has not in fact produced any evidence in support of his complaint of discrimination raised against the decision of 29 June 1982 and based on the Court's decision in the Williams case. (
                     13
                  ) In the absence of proof that different grading methods have been used in situations comparable to his case, I cannot accept this complaint. As far as concerns the situation of officials recruited by competition in other institutions, I have shown that their situation is not comparable to the applicant's since they were appointed to a different service or category.
               All those considerations lead me to conclude that the actions brought by the applicant in Cases 20 and 21/83 against the appointing authority's grading decision should be dismissed. According to Article 69 (2) and Article 70 of the Rules of Procedure, each party must bear its own costs.
            
         (
            1
         )	Translated frc m the French.
      (
            2
         )	Case 102/75, Petersen v Commission, [1976] ECR 1777, paragraph 16, and Opinion of Mr Advocate General Warner, at p. 1802.
      (
            3
         )	Case 176/73, Van Belle v Council, Opinion of Mr Advocate General Reischl [1974] ECR at p. 1376.
      (
            4
         )	Case 15/63, Lalsalle v Parliament, [1964] ECR 31.
      (
            5
         )	Case 15/63, Lassalle, cited above.
      (
            6
         )	Case 176/73, Opinion of Mr Advocate General Reischl, cited above, at p. 1374.
      (
            7
         )	Case 176/73, Van Belle, cited above, paragraphs 21 to 24.
      (
            8
         )	Joined Cases 55 to 76, 86, 87 and 95/71, Bernard v Commission, [1972] ECR 543, paragraphs 8 to 15, and Opinion of Mr Advocate General Roemer, at p. 569.
      (
            9
         )	Case 15/63, Lanalle, cited above, paragraph 11; Case 176/73, Van Belle, cited above, paragraphs 5 and 6; Case 123/75, Küster v Parliament, [1976] ECR 1701, paragraph 10 at p. 1709.
      (
            10
         )	Case 15/63, Lanalle, Opinion of Mr Advocate General Lagrange, cited above, at p. 46.
      (
            11
         )	Case 123/75, Küster, cited above, paragraph 12; judgment of 24 March 1983 in Case 298/81, Coltasi v Parliament, [1983] ECR 1131, paragraph 17.
      (
            12
         )	Case 14/79, Lochiteli v Council, [1979] ECR 3679, paragraph 11 ; Case 60/80, Kindermann v Commission, [1981] ECR 1329, paragraph 17; Case 178/80, Bellardi- Ricci v Commission, [1981] ECR 3187, paragraphs 18 to 20.
      (
            13
         )	Case 9/81, Williams v Court of Auditors, [1982] ECR 3301.