JUDGMENT OF 13.7.1972 — JOINED CASES 55 TO 76, 86, 87 AND 95/71 BESNARD v COMMISSION

In Joined Cases 55 to 76/71, 86, 87 and 95/71

THE COURT (First Chamber) composed of: J. Mertens de Wilmars (Rapporteur), President of Chamber, A. M. Donner and R. Monaco, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and procedure

The facts and the procedure may be summarized as follows:

The applicants are all officials of the Commission of the European Communities:

The applicants in Cases 55 to 76/71 who were officials in Category B were appointed, on different dates between 1968 and 1971, to posts of administrator in career brackets A 7-A 6. The appointment decisions stated that their classification as to grade and step in the new career bracket was to be reserved until a decision of general scope was made by the Commission on the criteria for classification in cases of change of category.

This decision was taken on 10 March 1971 and published in the Staff Courier of 15 April 1971 in the following terms:

‘(a) any decision making an appointment to a post in a career bracket in a higher category shall entail the classification of the person concerned in the starting grade of that career bracket; (b) the official shall be classified within this grade in the step carrying a basic salary equal to or immediately above that of his former grade. If this is not possible the official shall be classified in the final step of the new grade. Nevertheless where the basic salary resulting from the application of the preceding subparagraph is lower than the basic salary which the official received in his former post taking into account any automatic promotions in step (in application of Article 44 of the Regulations) the official shall receive the latter basic salary’.

This decision took effect on 1 February 1971 and applied also to appointments made since March 1970 involving change from Category B to Category A and for which classification as to grade and step had expressly been reserved.

Pursuant to this decision, the applicants received notice of appointment dated 3 June 1971 fixing their classification as to grade and step (which had remained in abeyance) in their new career bracket in A 7, Step 6, in all cases in the 55 to 76/71 group except 65/71 where the official was placed in Grade A 7, Step 5.

The applicants in Cases 86 and 97/71 were officials in Grade CI. Appointed on 1 June and 28 May 1971 respectively to a post in career bracket B5-B4, they were placed in Grade B5, Step 4 pursuant to the general decision set out above.

The applicant in Case 95/71 was an official in Grade Bl. On 13 September she was appointed to a post in career bracket A 7-A 6 and pursuant to the general decision set out above she was placed in Grade A 7, Step 6.

The applicants submitted complaints seeking, as appropriate, their classification in Grade A 6 (instead of A 7) or B4 (instead of B5) and stated that the step within this grade should moreover in each case be determined by application of Article 46 of the Staff Regulations.

In Cases 55 to 76/71 these complaints were rejected by a decision of the Commission of 9 July 1971 which was notified to the parties concerned on 27 July 1971. In Cases 86 and 87/71 they were rejected by decisions of 27 July (86/71) and 4 October 1971 (87/71).

On 3 August 1971 the applicants in Cases 55 to 76/71 brought before the Court of Justice an application dated 27 July 1971. On 14 and 15 October 1971 the applicants in Cases 86 and 87/71 brought before the Court applications dated 4 and 14 October 1971.

In Case 95/71 the applicants submitted an application to the Court of Justice dated 19 November 1971 without previously making a complaint.

Cases 55 to 76/71 were joined for the purposes of procedure and judgment by order of the Court (First Chamber) of 14 October 1971.

By order of the Court of 10 November 1971 Cases 86 and 87/71 were assigned to the First Chamber and were joined for the purposes of procedure and judgment to Cases 55 to 76/71 by order of the Court (First Chamber) of 3 December 1971.

By order of the Court of 23 November 1971 Case 95/71 was assigned to the First Chamber and joined for the purposes of the oral procedure and judgment by order of this Chamber of 8 March 1972.

On hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court decided that there was no need to undertake a preparatory inquiry.

The parties presented oral argument on 26 April 1972.

The Advocate-General delivered his opinion on 7 June 1972.

II — Conclusions

The applicants claim that the Court should;

1. In Case 55/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing her dated 3 June 1971 in so far as it classifies her in Grade A 7, Step 6 as at the date on which appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be, classified in Grade A 6, Step 4 as at the date on which the appointment took effect with seniority in step of 6 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through her immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

2. In Case 56/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerned ‘criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 4 as at the date on which the appointment took effect with seniority in step of 4 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

3. In Case 57/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 5 as at the date on which the appointment took effect with seniority in step of 13 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 14 May 1971;

e) Order the opposite party to bear the costs.

4. In Case 58/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 3 as at the date on which the appointment took effect with seniority in step of 13 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

5. In Case 59/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing her dated 3 June 1971 in so far as it classifies her in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 8 as at the date on which the appointment took effect with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through her immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

6. In Case 60/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 3 as at the date on which the appointment took effect with seniority in step of 15 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

7. In Case 61/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 4 as at the date on which the appointment took effect with seniority in step of 22 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 11 May 1971;

e) Order the opposite party to bear the costs.

8. In Case 62/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations ;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 4 as at the date on which the appointment took effect with seniority in step of 16 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

9. In Case 63/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 5 as at the date on which the appointment took effect with seniority in step of 9 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

10. In Case 64/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 3 as at the date on which the appointment took effect with seniority in step of 19 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect.

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

11. In Case 65/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 5 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 3 as at the date on which the appointment took effect with no seniority in step and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

12. In Case 66/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of categor’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 4 as at the date on which the appointment took effect with seniority in step of 2 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

13. In Case 67/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 4 as at the date on which the appointment took effect with no seniority in step and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

14. In Case 68/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 4 as at the date on which the appointment took effect with seniority in step of 2 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

15. In Case 69/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 4 as at the date on which the appointment took effect with seniority in step of 18 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

16. In Case 70/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 7 as at the date on which the appointment took effect with seniority in step of 11 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 11 May 1971;

e) Order the opposite party to bear the costs.

17. In Case 71/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing her dated 3 June 1971 in so far as it classifies her in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step;</ Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 6 as at the date on which the appointment took effect with seniority in step of 5 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through her immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

18. In Case 72/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing her dated 3 June 1971 in so far as it classifies her in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 8 as at the date on which the appointment took effect with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect.

d) Annul the implied rejection of the applicant's appeal through her immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

19. In Case 73/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations.

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 8 as at the date on which the appointment took effect with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 12 May 1971;

20. In Case 74/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 4 as at the date on which the appointment took effect with seniority in step of 6 months and with all the appropriate legal consequences, in particular payment of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 12 May 1971;

e) Order the opposite parties to bear the costs.

21. In Case 75/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 5 as at the date on which the appointment took effect with seniority in step of 12 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 12 May 1971;

e) Order the opposite party to bear the costs.

22. In Case 76/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of changes of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing him dated 3 June 1971 in so far as it classifies him in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 5 as at the date on which the appointment took effect with seniority in step of 19 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through his immediate superior of 11 May 1971;

e) Order the opposite party to bear the costs.

23. In Case 86/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations.

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing her dated 1 June 1971 in so far as it classifies her in Grade B5, Step 4 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade B4, Step 4 as at the date on which the appointment took effect with seniority in step of 14 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through her immediate superior of 12 May 1971 and, so far as may be necessary, the express rejection dated 27 July 1971;

e) Order the opposite party to bear the costs.

24. In Case 87/71

a) Rule that the application is admissible;

b) Annul the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing her dated 28 May 1971 in so far as it classifies her in Grade B5, Step 4 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade B4, Step 7 as at the date on which the appointment took effect with seniority in step of 5 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Annul the implied rejection of the applicant's appeal through her immediate superior of 24 June 1971; so far as may be necessary, annul the express rejection of the appeal through her immediate superior, dated 4 October 1971;

e) Order the opposite party to bear the costs.

25. In Case 95/71

a) Rule that the application is admissible;

b) Rule that the decision of the opposite party of 10 March 1971 published in Staff Courier No 158 of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; is illegal; Rule that the classification of an official appointed to a post in a career bracket which is in a higher category should be made, both as to grade and step, pursuant to and in accordance with the provisions of Article 46 of the Staff Regulations;

c) Annul the decision classifying the applicant in grade and step after appointment as appears from the instrument appointing her dated 13 September 1971 in so far as it classifies the applicant in Grade A 7, Step 6 as at the date on which the appointment took effect without any seniority in step; Decide or at least rule that the applicant is, or at least should be classified in Grade A 6, Step 3 as at the date on which the appointment took effect with seniority in step of 13 months and with all the appropriate legal consequences, in particular payment of arrears of salary as from the date on which the appointment took effect;

d) Order the opposite party to bear the costs.

The defendant contends that the Court should:

reject the applications as unfounded,

order the applicants to bear the costs.

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows:

A — Argument based on the infringement of Articles 46, 62 and 66 of the Staff Regulations and of the principle of maintenance of the level of basic salary

1. The applicants allege first that the contested decisions were taken in disregard of Articles 46, 62(1) and 66 of the Staff Regulations and of the principle whereby the basic salary must be maintained by classification in an appropriate grade and step. the applicants further allege that, in stating that any decision making an appointment to a post in a higher career bracket shall entail the classification of the person concerned in the starting grade of that career bracket, the general decision of 10 March 1971 precludes the implementation of Articles 46 for determining the classification of officials moving to a higher category in that it results in having the appointed official classified, contrary to the provisions of Article 46, in a grade and step of which the basic salary is lower than that which he had received in his former grade. Moreover, the decision is illegal in that it provides that where the basic salary arising from the application of the criteria for classification contained in it is lower than the basic salary which the official would have received in his former grade (taking into account any automatic advancement to a higher step) the official concerned shall receive the latter basic salary. Thus the officials would in fact not receive the remuneration carried by their grade and step as is required by the first paragraph of Article 62 but remuneration adopted by means of a ‘differential allowance’ to maintain the level of the basic salary whereas in fact the maintenance of the level of the basic salary should be achieved solely by classification in an appropriate grade and step. The individual decisions in issue are illegal in the same way as is the basic decision which they implement. The applicants are all classified in a grade and step of which the basic salary at the date of appointment was lower than the basic salary of the grade and step in which they were before their appointment. Moreover they do not receive the basic salary carried by the grades and steps in which they were classified by the instruments appointing them but the basic salary appropriate to their former grades and steps.

2. The defendant replies that Article 46 of the Staff Regulations is not, as such, applicable in a case of change of category and therefore cannot be relied on here to determine the grade of the applicants. Moreover even if Article 46 were applicable to changes of category, it would still not permit determination of the step, seniority in step and the basic salary in a given grade which is determined by other provisions of the Staff Regulations (Articles 5, 6 and 31). The special problems raised by transfer from one category to another justify the system applied to promotion within the same category not being taken into account in this case. Basic salaries overlap inevitably in cases of change of category since the lowest grades in the higher category are regarded as grades at the beginning of the career bracket whereas the highest grades in the lower category are, normally, grades at the end of the career bracket. Consequently for the latter grades higher salaries are provided than for the lower grades of the higher category. The existence of this system is not a sufficient ground for appointing officials from a lower category to the grade of the higher category where the salary corresponds to that which they received previously. In an extreme case where salaries overlap in such a way that the maintenance of the level of the basic salary by means of the grade can only be achieved by transfer to a higher career bracket, the system put forward by the applicants would result in officials having to be appointed to a career bracket which does not correspond to their duties. To act as the applicants propose would compromise the opportunities for promotion of officials who started their career in the higher category in the starting grade and would conflict with the very notion of career bracket as set out in Article 5 of the Staff Regulations (Case 33/67, Kurrer v Council [1968] ECR 127 at 137). Therefore the Commission was justified in using its power to appoint the applicants to the starting grade of the higher career bracket since in a judgment of 14 December 1965 (Case 11/65, Morina v Parliament [1965] ECR 1017) the Court accepted impliedly but necessarily that classification in the lower grade of the career bracket in cases of change of category did not infringe the provisions of the Staff Regulations.

3. The applicants reply as follows: (a) Even if it is not strictly applicable in cases of change from one category to another, Article 46 should be applied by analogy since the situation and the problems raised by the transfer of an official to a higher category are similar to those of the appointment of an official to a higher grade within a category (Judgment of 15 December 1966, Joined Cases 15/64 and 60/65, Moreau v Commission of the EAEC [1966] ECR 459 at 467 and 468): in both cases there is a promotion, there are problems of classification and there is overlapping in the table of salaries. (b) Article 46 only expressly applies to classification of step and not that of grade; nevertheless the basic principles must be deduced from this article, in particular that an official who has been promoted cannot receive a basic salary lower than that which he had received in his former post and that the maintenance of the level of remuneration may only be ensured by means of the classification and not by the grant of a differential allowance. The grade in which the officials must be placed follows naturally from these rules. Therefore it is not possible to rely, as the Commission attempts to do, on Articles 5, 6 and 31 of the Staff Regulations and on budgetary considerations which are outside the scope of the problem. (c) Failure to apply Article 46 would have the inevitable effect of obliging the Commission to infringe other provisions of the Staff Regulations. If it were to be accepted that the Commission had a certain discretionary power whether or not to apply Article 46 (according to budgetary provisions or the requirements of recruitment) the Commission would in the end have to apply it in all those cases where the requirement of maintaining the level of the basic salary demanded it, in order to avoid infringing in particular the first paragraph of Article 62 and Article 66. (d) The applicants further consider that application of Article 46 in the present case does not come up against any particular practical or legal problems: with regard to the budgetary position the appointing authority must, before appointing or promoting anyone, take account of these requirements. The decision of 10 March 1971 (second subparagraph of paragraph (b)) is, on the other hand, quite contrary to the budgetary provisions since under the system which it introduces officials are not paid according to the grade which they actually occupy; moreover, application of Article 46 does not itself prejudice officials classified in the starting grade of the career bracket in the category to which the applicants were promoted. It is for the Commission to decide either to appoint the officials by promotion, which would benefit the officials classified in the starting grade of the career bracket, or to appoint them after internal competition. Once this choice has been made the Commission is no longer free as to the choice of grades. If it decided in favour of the internal competition this would imply by definition that the post concerned could not be filled by promotion or transfer. Officials who started in the higher career bracket do not necessarily possess better qualifications than the applicants whose suitability for the post is recognized by their promotion. (e) Finally the Court did not decide the problem raised in this case in the judgments in the Morina case (Judgment of 24 December 1965, Case 11/65, Morina v Parliament [1965] ECR 1017).

4. The defendant makes the following reply: Article 40 is not applicable to cases of change of category but solely to promotions in the strict sense of the term which occur solely within the category to which the official belongs. Moreover application by analogy must be excluded as Article 46 contains no rule for determining the grade but solely provisions for determining the step. In this case the applicants cannot even invoke the principle that in other cases of promotion the level of the basic salary received before promotion must be maintained. It is not evident that this principle must be respected on change from one category to another. In addition Article 46 in no way requires that maintenance of the level of remuneration should be achieved solely by means of grading and the purpose of Article 46 is not moreover to determine classification as to grade. Therefore the solution adopted by the Commission, which ensures the maintenance of the level of the previous remuneration by payment of a differential allowance does not infringe Article 46, which in fact does not determine fixing of grades, or the second paragraph of Article 42 or Article 66. Indeed whilst Article 62 does provide that an official has the right to the remuneration carried by his grade and step, in this case the applicants receive not just this salary but in fact a higher salary; Article 66 sets out the table of salaries and these provisions cannot have been infringed by the contested decision. Finally the defendant replies, with regard to the influence of budgetary considerations on its decision, that the vacancy notices of the posts to which the applicants were appointed did not stipulate the grade in which the posts were to be but only indicated career brackets A7-A6 or B5-B4, at the same time making reservations with regard to budgetary considerations. As there exists no rule prescribing classification in the higher grade in these circumstances it is for the Commission, which is responsible for the organization of its departments, to use the A 6 or B4 posts giving priority to promotions in the strict sense of the term and to recruitment from outside.

B — Argument based on the infringement of Articles 44 and 46

1. The applicants allege that the contested decisions were taken in infringement of Articles 46 and 44 of the Staff Regulations since the system established by means of these decisions in the end results in the creation of an artificial career bracket with actual steps for advancement, and notional steps for seniority. With regard to most of the applicants the decisions of the Commission, according to their instruments of appointment, provide that the applicants shall continue to receive the two-yearly increments of the steps of their former grade and, on the other hand, that if subsequently they should be promoted to a higher grade, account shall be taken for the purpose of Article 46 of the step which they shall be deemed to have reached in the former Grade Bl or CI and of the seniority which shall be deemed to have been acquired in this step on the day of promotion. This system creates an artificial career bracket for promotion and seniority in step which does not exist in the Staff Regulations. The Commission is thus led to: put notional steps into an actual step, the final step in Grade A 7 or B5, although this step contains none such; grant advancement and seniority in step which are not appropriate to the official's grade. The system adopted by the defendant inevitably leads to consequences which are contrary to the Staff Regulations and it must therefore be rejected.

2. The defendant replies that the applicants have no legal interest in criticizing the contested decisions since these decisions preserve in their favour the advancement in step in their former grade. Quite legally the Commission could merely have maintained their former level of remuneration by means of a compensatory allowance. This argument must therefore be rejected.

3. The applicants reply that this argument is admissible. On the one hand a legal interest is a precondition for the existence of a right of action and not a precondition for raising an argument: the applicants have the right to raise against these measures any arguments on illegality even if the illegal aspect concerned does not itself adversely affect them. On the other hand the illegality for which they are arguing does affect them adversely since the artificial career bracket established by the decisions fails to give them rights equivalent to those of a normal career bracket in the event of subsequent promotion and in the matter of pension rights. They add that the argument is well founded and that the Commission has not even challenged its substance.

4. The defendant contends that Article 44, which is invoked in the second argument, serves in the opinion of the applicants to show that the second part of the decision of 10 March 1971, whereby the official who is classified in the starting grade continues where appropriate to receive the salary of his former grade taking into account possible advancement to a higher step, is unlawful. The applicants have no legal interest in seeking the annulment of this part of the decision which gives them more than they might be entitled to. The defendant relies on the wisdom of the Court as to the question whether the contested part of the general decision can affect the applicants adversely in that if they are subsequently promoted there is the risk that their seniority in step may be contested or that the calculation of their pension may be affected by their classification in Grade A 7, Step 6 or Grade B5, Step 4.

C — Argument based on the infringement of the rule of equality of officials

1. In the alternative, the applicants allege that the contested decision infringes the principle of the equality of officials under the Staff Regulations. By the appointments made from March 1970 until 31 January 1971 the general decision at issue was only applied to officials moving up from Category B to Category A (Cases 55 to 76/71) whereas officials promoted during the same period from Category C to Category B had in fact received the treatment claimed by the applicants; moreover the rule set out in this general decision was applied to the applicants retroactively.

2. The defendant replies that whilst it has adopted a different method for transfer from Category C to Category B from that for transfer from Category B to Category A between March 1970 and March 1971 this was solely due to the wider budgetary facilities available in respect of officials eligible for promotion which did not require the higher grade of career bracket B5-B4 to be restricted to officials of Grade B5.

3. The applicants reply that with regard to the applicants in Grade A the Commission in fact admitted the discrimination it had practised although it attempted to explain it on grounds of budgetary expediency which cannot justify a practice contrary to the regulations. The applicants in Cases 86 and 87/71 add that they too were the victims of discrimination since whilst they were promoted to the lower grade of career bracket B5-B4, other officials who were also promoted on change of category subsequent to the entry into force of the general decision of 10 March 1971 were promoted to Grade B4 of the same career bracket contrary to the terms of the general decision. With regard to the case of Mrs Saüt, she states that at least one official (in the scientific and technical service) was promoted from Grade B3 to Grade A 7 after the entry into force of the general decision of 10 March 1971 contrary to the requirements of that decision.

4. The defendant replies that whilst it is true that since the merger of the executives no official has been classified in the higher grade of career bracket A 7-A 6, and that on the other hand, officials from Grade C have been classified in Grade B4 on change of category, this is explained by the fact that the position of Grade C officials is not identical to that of Grade B officials and that, having more B4 posts than A 6 posts vacant, the Commission was to some extent able to use them to promote Grade C officials into Grade B4. It further states that the position of officials appointed to Category B and that of officials appointed to Category A are in no way comparable: officials appointed in the starting career bracket B5-B4; those appointed to Category A were not appointed to the starting career bracket (A 8) but to career bracket A7-A6. With regard to Cases 86 and 87/71 it raises the objection that the allegation of discrimination was only made in the rejoinder and therefore must be rejected as inadmissible. The Commission adds, in so far as it is relevant, that officials who were appointed to the higher grade of career bracket B5-B4 after the entry into force of the general decision of 10 March 1971 were appointed between 1 February 1971 and 10 March 1971 under the old system of appointment which allowed Grade C officials to be classified in the higher grade of career bracket B5-B4. It was only through an oversight that the general decision of 10 March 1971 took effect on 1 February 1971. With regard to the alleged discrimination in Case 95/71 the Commission states that the case mentioned is not comparable to that of Mrs Saüt who belongs to the administrative staff and not to the scientific and technical staff.

D — As to the classification sought by the applicants

The applicants draw the consequences from their argument with regard to the exact classification appropriate to them and repeat this in their conclusions.

The defendant states that it is superfluous for the Court in its order, to fix the step and seniority in step to which the applicants may be entitled; this would amount to implementation of the judgment.

The applicants reply that they are entitled to ask the Court of Justice to award a particular classification and the Court of Justice is competent to do so (Judgment of 9 July 1970, Joined Cases 59 and 71/69, Brembati v Commission [1970] ECR 623).

The defendant states that it does not contest the Court's right to make a ruling as to the step to which the applicants are entitled under Article 46. Furthermore it does not challenge the assessments as to step made by the applicants.

Grounds of judgment

1. By application lodged on 27 July, 4 October and 29 November 1971 respectively the applicants have brought actions seeking the annulment of the general decision of the defendant of 10 March 1971 published in the Staff Courier of 15 April 1971 concerning ‘Criteria for classification in cases of change of category’; and for the annulment of decisions taken on their classification.

2. By this general decision an official appointed to a post in a career bracket in a higher category shall be classified in the starting grade of that career bracket.

3. The step assigned to him shall be chosen in such a way that the basic salary shall be equal to or immediately above that of his former grade.

4. If this is not possible the official shall be classified in the final step of the new grade.

5. Nevertheless if this classification only affords him a basic salary lower than that which he would have received in his former grade taking into account any automatic increments provided for by Article 44 of the Staff Regulations, he shall be granted a compensatory allowance in respect of the difference.

6. Moreover in the several measures of classification adopted in respect of the applicants, the defendant decided ‘that the notional seniority in the step of the former grade shall be maintained for the purpose of the application of the provisions of Article 44 of the Staff Regulations’ and ‘that in any case the step and seniority thus acquired in this step shall be taken into account for the application of the provisions of Article 46 of the Staff Regulations when the first change of grade in the new category takes place’.

7. The applicants allege, in the first place, that the contested decisions were taken in disregard of Article 46, the first paragraph of Article 62 and Article 66 of the Staff Regulations and the principle whereby the maintenance of the level of the basic salary must be achieved by classification in the appropriate grade and step.

8. Article 46 of the Staff Regulations appears in Chapter 3 of Title HI, headed ‘Reports, advancement to a higher step and promotion’ and concerns the effect of advancement to a higher step and promotion.

9. Paragraph 1 of Article 45 defines promotion as being appointment to the next higher grade in the category to which the official belongs and paragraph 2 thereof distinguishes it from promotion from one category to another which may only take place on the basis of a competition.

10. It follows that the provisions of Article 46 are not as such applicable to change of category.

11. Moreover they only concern classification in step and not in grade.

12. Under Article 5 of the Staff Regulations, in each category officials shall be classified without exception in career brackets comprising ordinarily two grades.

13. This provision lays down a principle which is one of the guiding rules of the Staff Regulations.

14. It is therefore not possible to apply the rules contained in Article 46 solely for determining step in cases of promotion by analogy in order to determine the grade in cases of change of category.

15. In this respect therefore it was possible for the contested decision to provide that in the case of appointment to a post in a career bracket of a higher category, the official shall be classified in the starting grade of that career bracket.

16. The applicants allege that by authorizing the calculation of salary according to the scale appropriate to their former career bracket the general decision at issue diverges in this respect from Article 62 of the Staff Regulations whereby an official is entitled to the remuneration appropriate to his grade and step.

17. This contradiction shows that the system established by the Commission is contrary to the Staff Regulations.

18. This line of argument cannot be upheld.

19. Remuneration is dependent on the grade and the post not the converse.

20. Nevertheless the administrative authority may seek to reconcile the observance of this principle with a concern to protect the promotion of an official resulting in his remuneration being lower than that which he received in his former post.

21. While such an eventuality cannot justify derogation from Article 5 of the Regulations in the event of change of category solely in order to avoid causing financial loss to the official concerned, nevertheless it does not prevent the provisional grant of a compensatory allowance to the official.

22. The submission must be rejected.

23. The applicants further allege that the decisions at issue were taken contrary to Articles 44 and 46 of the Staff Regulations since the system adopted leads in the end to the creation of an artificial career bracket for advancement and seniority.

24. With regard to the admissibility of this submission the defendant states that were the Court to decide that classification in the lower grade in cases of change of category is in conformity with the Staff Regulations, the applicants would have no interest in having the individual decisions annulled in so far as they maintain to their benefit, the advancement of step in their former grade which is an additional advantage.

25. Nevertheless this submission does not in the alternative, seek the partial annulment of the contested decisions as the defendant assumes, but is in support of a request for the annulment of all these decisions.

26. In particular it serves to show that in cases of transfer to a higher category the general decision of 10 March 1971, by diverging from the rules laid down by Article 46 of the Staff Regulations, leads to infringements of other provisions of the regulations, in particular of Article 44.

27. The submission is therefore admissible.

28. The individual decisions at issue provide that ‘the notional seniority in this step’ (that is to say, the step of the grade which the parties concerned formerly held) ‘shall be maintained for the purpose of application of the provisions of Article 44 of the Staff Regulations’ and ‘that in any case the step and seniority thus acquired in this step shall be taken into account for the application of the provisions of Article 46 of the Staff Regulations when the first change of grade in the new category takes place’.

29. This system has the effect of allowing the official moving up into a higher category to benefit from the two-yearly increments attached to his former post as if he was still there whilst, apart from such a fiction, his remuneration in the new grade would still be below that which he would receive on advancing in step in the grade which he left.

30. The situation thus remedied in applicable to advancement to a higher category.

31. Once again there is permissible reconciliation of the general rule that the grade in which an official is placed following a change of category may not be determined by the remuneration which he received previously, with the legitimate interest of the official that save in exceptional cases his promotion shall not entail loss of salary.

32. Although this consideration was extended to its extreme limits in favour of the applicants in this case, it must nevertheless be accepted that the contested decisions have not infringed Article 44 of the Staff Regulations by using the concept of an artificial career bracket.

33. The submission must be rejected.

34. Finally the applicants allege that the decision of 10 March 1971 and the individual decisions taken in implementation thereof violate the principle of the equality of officials under the Staff Regulations.

35. In this respect they claim that as from March 1970 the decision of 10 March 1971 is applicable in cases of advancement from Category B to Category A for which classification of grade and step had been reserved whilst it only becomes applicable to advancement from Category C to Category B as from 1 February 1971.

36. Secondly the applicants claim that even after 1 February 1971 changes of category took place is disregard of the rules set out in the decision of 10 March 1971 in particular for advancement from Category C to Category B and in addition in the case of a scientific officer who advanced from Grade B3 to Grade A 7 in career bracket A 8-A 5.

37. The first part of the submission concerns advancements from Category C to Category B and classifications carried out wholly before the entry into force of the general decision of 10 March 1971.

38. The position of the officials affected by this measure was therefore different from that of the applicants in Cases 55 to 76/71 whose classification and step were expressly reserved.

39. With regard to the second part of the submission, the admission that the above-mentioned appointments to Grades B4 and A 7 respectively are proved to have infringed the decision of 10 March 1971, entails the illegality of those appointments but not necessarily the illegality of the decisions taken in accordance with the same general decision.

40. The submission as to discrimination must therefore be rejected.

Costs

41. Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs, save that under Article 70 of those rules, institutions shall bear their own costs in actions commenced by officials of the Communities.

42. The applicants have failed in their submissions.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community; Having regard to the Staff Regulations of Officials, especially Article 5, 6, 31, 44, 45, 46, 62, 66 and 105; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT (First Chamber) hereby :

1 Dismisses the applications in Joined Cases 55 to 76/71, 86/71, 87/71 and 95/71;

2 Orders the parties to bear their own costs.