CELEX: 61985CC0232
Language: en
Date: 1986-10-08 00:00:00
Title: Opinion of Mr Advocate General Mancini delivered on 8 October 1986. # Jean Victor Becker v Commission of the European Communities. # Official - Upgrading of a competition. # Case 232/85.

OPINION OF MR ADVOCATE GENERAL MANCINI
      delivered on 8 October 1986 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               On 29 January 1982 Mr Becker, a member of the temporary staff in Grade A 5 employed since 1981 in the Commission's Informatics Engineering Division, wrote to the Director-General for Administration, Mr Morel, asking him to reconsider his status with a view to his possible establishment as an official in career bracket A 5/A 4. He stated that although he had been informed by the Personnel Department that temporary staff of his level were normally established in Grade A 6, in his case studies in economics had been followed by lengthy experience in the computer field (1969-75), after which he had been employed until 1981 by the Commission as an assistant to Mr Borschette and Mr Vouel, Members of the Commission. When he left Mr Vouel's Cabinet he had been promised that he would shortly be established in Grade A 5. Mr Becker concluded his letter by writing: ‘in view of the foregoing ... and of the responsibilities that my present duties entail... I trust — even though in the last resort I would be prepared to accept the solution proposed ... — that you will be able to find a way of establishing me as an official in Grade A 5 under the existing rules.’
               On 4 July 1983 Mr Becker applied to be admitted to competition COM/339/82 for a post of administrator in career bracket A 7/A 6 in the division in which he was already working. He appended to his application a memorandum stating: having for the time being no other choice ‘I would observe ... that my application by no means signifies that I have renounced my acquired rights’. The memorandum went on to say that the reply to his letter of 29 January 1982 stated that ‘henceforward, exceptions would be made to the principle of establishment in the starting grade only in the case of posts of head of a specialized department or similar posts.’ It continued: ‘However, I see that the administration has just published several notices of internal competitions on the basis of qualifications for posts in Grades A 5/A 4 and A 3 in order to regularize the position... of temporary research staff. My situation is basically similar, which means that I have been treated unfairly in this case’.
               On 6 February 1984, having passed the competition, Mr Becker was appointed as a probationary official in Grade A 6, Step 5. But the matter did not end there. Some months later the Commission announced that three internal competitions would be held for posts in career bracket A 5/A 4. Thereupon Mr Becker submitted to the appointing authority a request pursuant to Article 90 (1) of the Staff Regulations in which he asked to be reclassified in Grade A 5, on the ground that the publication of the said notices of competition showed that the Personnel Department had misled him about the possibility of appointment in a career bracket higher than ‘the starting grades’. The appointing authority rejected that request and his subsequent complaint. Mr Becker thereupon lodged this application, which was received at the Court on 23 July 1985. He claims that the Court should:
               
                        (a)
                     
                     
                        annul the decision rejecting his complaint;
                     
                  
                        (b)
                     
                     
                        declare that the Commission is under a duty to treat him in the same way as it treats other officials;
                     
                  
                        (c)
                     
                     
                        order the Commission to compensate the applicant for the damage which he has suffered.
                     
                  
         
               2. 
            
            
               The Commission raises, as a preliminary issue, an objection of inadmissibility; in its contention the action is essentially directed against the decision of 6 February 1984 by which Mr Becker was appointed as a probationary administrator in Grade A 6 and not in Grade A 5, as he had requested on several occasions. With regard to the date of that decision, the complaint made on 30 November 1984 was out of time, and the fact that the appointing authority had nevertheless considered a request made pursuant to Article 90 (1) ‘cannot have the effect of ... reestablishing a right of action which is definitively time-barred’ (judgment of 12 July 1984 in Case 227/83 Moussis v Commission [1984] ECR 3133, paragraph 13).
               For his part the applicant relies on the existence of a new fact: he had not realized that he had been discriminated against until the Commission published three notices for competitions which were in all respects similar to the competition in which he had taken part but intended to fill posts in career bracket A 5/A 4. That circumstance, which was definitely ‘different’ from the circumstances in which his appointment took place, prompted him to ask for his grading to be reviewed and, as a result of the decision of 6 November 1984 refusing his request, to lodge a complaint on 30 November 1984. On that basis, the applicant maintains that the time-limits for the pre-litigation procedure were complied with and there is no reason to declare the action inadmissible.
            
         
               3. 
            
            
               I would point out to begin with that, according to the judgment of the Court of 30 May 1984 in Case 326/82 (Ascbermann and Others v Commission [1984] ECR 2253, paragraph 13), the appointing authority ‘is not required, unless important new facts arise, to reconsider a decision which is no longer open to challenge’. In the present instance there is no doubt that the measure at issue is the decision of 6 February 1984 and that Mr Becker did not challenge it in time. Consequently, the only remaining question is whether the circumstance on which the applicant relies in his reply is new and important in accordance with the requirements set out in the judgment cited above.
               In my view, those requirements are not fulfilled. Even assuming that, by publishing after Mr Becker's appointment notices of three internal competitions with the same conditions but offering better grading to successful candidates, the Commission discriminated against Mr Becker, the fact remains that he had already complained of precisely the same discrimination when he took part in the competition (he wrote ‘the administration has just published several notices of internal competitions on the basis of qualifications for posts in Grades A 5/A 4 and A3... which means that I have been treated unfairly in this case’). Therefore, the 1984 notices of competition could not have been, in his eyes, a ‘new fact’ which might affect his legal position and thus warrant the revision of his grading.
               In the light of those factors and in view of the fact that the time-limits prescribed in the Staff Regulations are a matter of public policy, since they were laid down with a view ‘to ensuring clarity and legal certainty’ (judgment in the Moussis case, cited above, paragraph 12), I propose that the Court should declare the application to be inadmissible.
            
         
               4. 
            
            
               In the event that the Court does not accept my proposal, I consider that it should, in any event, declare the applicant's claims to be unfounded. The first claim is for the annulment of the decision rejecting his complaint on the ground that the decision does not contain an adequate statement of reasons: in other words, the appointing authority failed to explain why it rejected Mr Becker's request. Yet, to me, the appointing authority's reply was comprehensive: it states that ‘the administration alone is responsible for the organization of its departments, which it must be able to determine and modify on the basis of its own objectives’ and that ‘the fact that an official fulfils tasks on a level higher than his grade is not ... sufficient to warrant’ a review of his administrative position. It is hardly necessary to point out that that wording faithfully reflects the approach consistently adopted by the Court (judgment of 12 July 1973 in Case 28/72 Tontodonati v Commission [1973] ECR 779, paragraph 8; judgment of 14 July 1977 in Case 61/76 Geist v Commission [1977] ECR 1419, paragraph 38).
               In his second claim the applicant asks the Court to declare that the Commission is bound to comply with the principles of equal treatment and legitimate expectations. As regards the first point he relies on the alleged strong similarity between the tasks described in the notice of the competition in which he took part (Grade A 6) and the tasks appertaining to the posts in career bracket A 5/A 4 announced in the subsequent notices of competition. Furthermore, Mr Becker maintains that ever since he entered the service of the Commission he has carried out tasks corresponding to posts of a higher grade. Obviously, however, those observations lose their force in the light of the case-law which I have just cited. What is more, candidates in the competition which Mr Becker considers to be discriminatory had to show that they had ‘in-depth experience relevant to the post’ (my emphasis). That stipulation was not among the requirements of the competition which Mr Becker passed. As a result, the alleged resemblance is nonexistent.
               As regards the principle of legitimate expectations, the applicant asserts that the Commission did not honour the promise to appoint him in Grade A 5. However, I would observe that the subject-matter of the application is the Commission's refusal to regrade Mr Becker in that career bracket. Since that argument is directed against the decision appointing Mr Becker as an official in Grade A 6 (which is no longer open to challenge) it is therefore irrelevant.
            
         
               5. 
            
            
               In the light of the foregoing I propose that the Court should declare the application brought by Mr J. V. Becker against the Commission of the European Communities to be inadmissible or, failing that, dismiss it, and, in accordance with Article 70 of the Rules of Procedure, order the parties to bear their own costs.
            
         (
            *1
         )	Translated from the Italian.