CELEX: 61982CC0190
Language: en
Date: 1983-10-20 00:00:00
Title: Opinion of Mr Advocate General Rozès delivered on 20 October 1983. # Adam P.H. Blomefield v Commission of the European Communities. # Classification in step on recruitment. # Case 190/82.

OPINION OF MRS ADVOCATE GENERAL ROZÈS
      delivered on20 october 1983 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      The Court has before it an action brought against the Commission of the European Communities by Adam Blomefield, seeking the annulment of decisions concerning his classification in step.
      I — The facts are as follows:
      Adam Blomefield participated successfully in the tests in Open Competition No COM/LA/141, (
            2
         ) organized by the Commission with a view to drawing up a reserve list for the recruitment of assistant translators (Grades L/A 8 and L/A 7 of the Language Service).
      The competition notice stated that the basic monthly salary on recruitment would correspond to classification in Grade L/A 8, Step 1. It was, however, added that regard would be had to the training and specific professional experience of the candidate for the purpose of awarding a higher step. In exceptional cases a basic salary corresponding to classification in Grade L/A 7, Step 3, might be awarded.
      After being entered on the reserve list, Mr Blomefield was appointed a probationary official on 23 August 1977, in the capacity of assistant translator, with effect from 1 August 1977. He was placed in Grade L/A 7, Step 1.
      He was subsequently established on 26 April 1978, with effect from 1 May 1978.
      Unlike the decision appointing him a probationary official, the decision which established him did not specify his step in the grade and carried no reference to the post which he occupied. It may nevertheless be assumed that the post in question was that of assistant translator.
      Following the amendment of the Staff Regulations of Officials of the European Communities by Council Regulation (Euratom, ECSC, EEC) No 912/78 of 2 May 1978, (
            3
         ) the career bracket of assistant translator no longer extends beyond Grade L/A 8, whilst Grades L/A 6 and L/A 7 thereafter constitute the career bracket of translator. Thus the duties performed by Adam Blomefield are now those of a translator.
      II — In March 1981 the Director-General of Personnel and Administration at the Commission notified to the staff of that institution a Commission “Decision on the Criteria Applicable to Grade and Step Classification upon Recruitment.”
      I shall return later to the legal nature of that measure, since its status determines the admissibility of this action.
      At this stage I shall confine myself to noting that the decision, adopted on6 June 1973, was originally intended “to facilitate the many selections and decisions which had to be made during a comparatively short period”; (
            4
         ) however, as the Commission explained in reply to a question put to it by the Court in Case 343/82 (Michael v Commission), it wished to be sure that those rules displayed the requisite stability and coherence to ensure that members of staff received uniform treatment in the course of their careers.
      The 1981 version of that decision contains certain amendments to the 1973 text (
            5
         ) in order to reflect the changes introduced by Regulation No 912/78.
      The Commission considered it opportune to publish simultaneously with that decision an annex summarizing the practice of the Grading Committee set up under Article 6 thereof and describing its composition.
      A copy of each of these various documents was sent to every member of staff and, since March 1981, every successful candidate in a competition has received one.
      On the strength of the provisions of the above “decision”, Mr Blomefield submitted a request under Article 90 (1) of the Staff Regulations to the appointing authority on 6 June 1981, in which he sought to be placed in Step 3 of Grade L/A 7 with effect from his appointment on 1 August 1977.
      The secretary of the “Grading Committee” referred to in Article 6 of the decision replied to the applicant on 9 July 1981, informing him that after a preliminary exchange of views on 17 June 1981 the Committee was going to rule, in September or October 1981, on all the requests submitted following publication of the “decision” and that he would be personally notified of the opinion relating to him.
      On 7 January 1982, Mr Blomefield submitted a complaint under Article 90 against the implied rejection of his request of 6 June 1981. (
            6
         )
      On the same day the member of the Commission responsible for staff matters informed him that the Committee had, on 11 November 1981, reached the conclusion that his classification in Grade L/A 7, Step 1, was in accordance with the criteria applicable at the time of his recruitment and that those criteria had moreover been applied equally to other successful candidates from the same competition. Consequently, the Commission was endorsing the opinion of the Grading Committee.
      By an application lodged on 28 July 1982, Mr Blomefield claimed that the Court should:
      
               (i)
            
            
               Annul the decision notified to him on 7 January 1982;
            
         
               (ii)
            
            
               Annul the implied decision rejecting his complaint; and
            
         
               (iii)
            
            
               Annul the original decision classifying him in Step 1 of Grade L/A 7.
            
         He further requests the Court to declare that he should be classified in Step 3 of Grade L/A 7 or, in the alternative, to order the Commission to grant him, as from a date to be fixed in the judgment, additional seniority of two steps.
      III —  Without pleading a formal objection, the Commission states that the admissibility of the application seems dubious, at the very least.
      That issue should be considered first.
      It could be argued that the “directives” (
            7
         ) made public in March 1981, which do not refer to Article 110 of the Staff Regulations, constitute a purely internal measure and confer no right of which employees may usefully avail themselves; in that case the measure would have the same scope as the “criteria” which were at issue in the Petersen case cited above and the Court might follow that decision by holding that “consideration of the legal nature of these criteria, which is necessary for a decision on the admissibility of the application, also arises in connection with the examination as to whether the application is wellfounded.” (
            8
         )
      Whilst it did not necessarily call for the adoption of a general implementing provision under Article 100, Article 31 of the Staff Regulations did not preclude the adoption, in order to avoid its being applied in an arbitrary manner, of an internal directive within the meaning of the Court's judgment in the Louwage case, which states: “Although an internal directive has not the character of a rule of law which the administration is always bound to observe, it nevertheless sets forth a rule of conduct indicating the practice to be followed, from which the administration may not depart without giving the reasons which have led it to do so, since, otherwise the principles of equality of treatment would be infringed.” (
            9
         )
      It seems to me that the Commission's “decision” of 1973 assumed, at all events, the character of an internal directive from the moment of its publication in 1981, when, by reason of the very manner of its publication, it lost the transient character which it may originally have had.
      The fact of publication enables officials to challenge the details of the classification which they “accepted” at the time of their recruitment. In that connection, the Court has held that, in any case, the appointment of a official cannot be the outcome of an agreement but is based on a unilateral decision of the appointing authority. (
            10
         )
      In the Williams case, (
            11
         ) the Court described as a ‘general decision’the measure which was adopted by the Court of Auditors in February 1981 and which is fully comparable to the “decision” of the Commission in the present case.
      Finally, the fact that the Grading Committee made a “ruling” on the applicant's request amounts to a new event. The Committee's opinion — of which he was not informed — is referred to in the letter of 7 January 1982, the annulment of which is the subject of the applicants' first head of claim. The letter is not purely confirmatory in character, since it is based essentially on the opinion delivered by the Committee.
      I therefore consider the action admissible.
      IV — As for substantive matters, the first consideration is whether Mr Blomefield satisfies the requirements of professional experience laid down by the decision of 6 June 1973.
      
               1.
            
            
               That decision, which permits exceptions to the general principle of appointment in the starting grade of the lowest career bracket of the official's category, derives, not from Article 32 of the Staff Regulations but from Article 31 thereof.
               It may be seen that the Commission has, in accordance with that article, laid down precise criteria, which have furthermore been correctly applied as regards the grade given to the applicant.
               Mr Blomefield bases his application concerning classification in step, in essence, on Article 5 (1) of the decision, according to which :
               “In consideration of a candidate's professional experience which exceeds the length of that taken into account for determining his grade of appointment, the appointing authority shall, in accordance with the annexed table, allow additional seniority.”
               The use of the present indicative [in the French version] does not mean that the Commission could not, for legitimate reasons, omit to apply that rule; but it would be contrary to the principles of proper administration for the Commission to fail — without exceptional justification — to abide by the “doctrine” which it imposed upon itself and which it saw fit to notify to its employees.
               The Commission is permitted to depart from that doctrine on legitimate grounds, but — in the absence of such grounds — it is bound to comply with it by virtue of the principle of equality of treatment, (
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                  ) which the adoption and publication of those criteria was indeed designed to guarantee.
            
         
               2.
            
            
               I shall now turn to consider whether that principle or other legitimate grounds allowed the Commission to depart from that rule in the applicant's case.
               The latter claims that he can show evidence of professional experience going back nearly seven years before his appointment, as may be seen from his application form.
               According to the table annexed to the 1973 decision, however, it is sufficient to have five years' experience in order to claim an additional seniority in step of 48 months (equivalent to two steps).
               Without directly disputing its duration, the Commission contends that Mr Blomefield's experience was extraneous to the duties entailed by the post for which he was recruited.
               In so doing, the Commission bases itself on paragraph 3 (c) of a document illustrating the Grading Committee's practice, which states that, in respect of career bracket L/A 7-L/A 6, “100% credit is given for relevant experience at a level equivalent to Category A work.”
               The construction which the Commission puts on the text in question seems to me to be mistaken.
               The experience referred to by the above provision must, it is true, be at postuniversity level, but it must not be reduced to meaning the specific tasks entrusted to the employee after his recruitment; it is sufficient that the experience should be equivalent to Category A work. In other words, a translator who, after completing his university studies, has acquired experience as an economist or lawyer, for example, is perfectly entitled to rely on it in order to claim the benefit of Article 5 in the light of the Grading Committee's stated practice. It is not necessary for the experience to be strictly confined to translation, as long as it is equivalent to Category A work (the text makes no mention of Category L/A).
               Moreover, the conditions for admission to the competition in which the applicant took part did not demand that candidates should produce evidence of having completed university studies in languages, nor that they should have ‘relevant’ experience, but merely a degree of experience “appropriate” to the post.
               Further support for that interpretation of the text is that compulsory military service is taken into account, no less than “relevant” professional experience, for the purposes of awarding additional seniority in step. (
                     13
                  )
               If the person concerned had passed a competition for Career Bracket A 7-A 6, a degree as Bachelor of Arts and three years of professional experience would have entitled him to be classified in Grade A 7, Step 2. In fact, the applicant obtained a degree as Master of Arts (Law) at Trinity College, Oxford, in 1968 and he can show proof of almost seven years' experience as what may be described as a company lawyer. It may further be noted that since 1980 the applicant has been working in cooperation with the Directorate-General for Agriculture, and more particularly with the Management Committees.
            
         
               3.
            
            
               Finally, Mr Blomefield adds that other successful candidates in the competition in which he took part were awarded additional seniority of 48 months.
               In its reply of 7 January 1982 the Commission stresses that, on the contrary, his grading is in keeping with that of other successful candidates. The Court has been given no particulars on this matter, but it is not necessary to consider the point if, as I believe, the applicant is entitled to the seniority which he claims on the strength of his own merits.
               As regards the date on which the reclassification should take effect, Mr Blomefield takes the view that it should be made retroactive to the date of his appointment; in the alternative, he asks the Court to order the Commission to grant him additional seniority of two steps, as from a date to fixed by the judgment.
               I consider that the date fixed should be the day on which he submitted his request under Article 90 (1) of the Staff Regulation, as the Court held in the Williams case. (
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                  )
            
         I propose the following:
      
               (i)
            
            
               That the Commission's decision of 7 January 1982 be annulled;
            
         
               (ii)
            
            
               That, to the extent necessary, the implied decision rejecting the applicant's complaint be annulled;
            
         
               (iii)
            
            
               That additional seniority of two steps be awarded to the applicant with effect from 11 June 1981, being the date on which his request was registered; and
            
         
               (iv)
            
            
               That the Commission of the European Communities be ordered to pay the costs.
            
         (
            1
         )	Translated from the French.
      (
            2
         )	Official Journal 1976, C 127, p. 6.
      (
            3
         )	Official Journal 1978, L 119, p. 1.
      (
            4
         )	Judgment of 2 December 1976, Case 102/75 Petersen v Commission [1976] ECR 1777, para. 23.
      (
            5
         )	Anieles 2 and 3.
      (
            6
         )	The complaint was registered on 8 January 1982.
      (
            7
         )	The term employed in the notice to Commission staff of March 1981.
      (
            8
         )	[1976] ECR 1777, para. 12.
      (
            9
         )	Judgment of 30 January 1974, Case 148/73 Louwage v Commission [1974] ECR 81, para. 12.
      (
            10
         )	Petersen case, cited above, para. 16.
      (
            11
         )	Judgment of 6 October 1982, Case 9/81 Williams v Court of Auditors [1982] ECR 3301.
      (
            12
         )	Louwagcv Commilsioii, ciicd above, para. 13.
      (
            13
         )	See Annex II to the decision (“Practical Application — General Survey”), paragraph 1 (b).
      (
            14
         )	Judgment of 6 October 1982, Case 9/81, para. 28 of decision and operative part of judgment.