Ulrich Klinke v Court of Justice of the European Communities.
Date: 1994-06-29
14 That plea is well founded. Whilst it is true that, according to the case-law of the Court (see Case 33/67 Kurrer v Council [1968] ECR 127), Article 31(2) of the Staff Regulations enables the appointing authority exceptionally, by way of derogation from Article 31(1) and in order to meet the specific needs of a service, to declare vacant a post in a higher grade of a career bracket and not in the starting grade, and to organize a competition relating directly to that grade, that does not mean that the sole purpose of the power of derogation conferred on the appointing authority by the provision in question is in order that it may declare a post vacant and organize the procedure to fill it.
15 Article 31(2) does not contain any criteria regarding the application of the exception to the rule laid down in Article 31(1). However, it follows from a consistent line of cases decided by the Court that the appointing authority has a wide discretion in the matter (see, for example, Michael v Commission and De Szy-Tarisse and Feyaerts v Commission, cited above, and Case 219/84 Powell v Commission [1987] ECR 339) and, in particular, that under the provision in question, as with the second paragraph of Article 32 of the Staff Regulations, the appointing authority also has that discretion in assessing the practical experience of the persons concerned for the purposes of their classification in grade (see the judgments in Michael v Commission, paragraph 19, and De Szy-Tarisse and Feyaerts v Commission, paragraph 26).
19 The appellant claims that the Court of First Instance based its finding on a comparative criterion not raised by him, namely the "specific requirements of the different posts to be filled". The comparative criterion referred to by the applicant for the purposes of assessing whether he has suffered discrimination can only be "the individual circumstances of the (in this case, hypothetical) candidates who passed the competition for that post". The applicant' s situation was, he says, different from that of any of his potential rivals because he had in fact been occupying the post in question for more than six years.
30 The applicant' s line of argument is tantamount to saying that the appointing authority could not in the circumstances exercise its discretion otherwise than by appointing him to the higher grade of the career bracket concerned, as if a given level of practical experience could confer on the person possessing it a right to be appointed at that grade.
38 The administration' s duty to have regard to the welfare of officials, as expounded by the Court in its case-law, reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants. A particular consequence of this balance is that when the authority takes a decision concerning the situation of an official it should take into consideration all the factors which may affect its decision and that, in so doing, it should take into account not only the interests of the service but also those of the individual concerned (see Joined Cases 33/79 and 75/79 Kuhner v Commission [1980] ECR 1677, paragraph 22).