JUDGMENT OF 2. 12. 1976 - CASE 102/75 PETERSEN v COMMISSION

In Case 102/75

THE COURT (First Chamber) composed of: A. M. Donner, President, J. Mertens de Wilmars and A. O'Keeffe, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and the arguments developed by the parties during the oral procedure may be summarized as follows:

I — Facts and procedure

From the personal file of Mr Asger Petersen, a Danish national, it appears that he applied for a post in a grade not lower than A 4 at the Commission of the European Communities. He was summoned to an interview at the Commission by telegram of 21 September 1973.

During the interview, which took place on 28 September 1973, doubts arose as to whether the rules on the subject of recruitment enabled Mr Petersen to be appointed in Grade A4 because the number of years of experience he had was insufficient.

By letter of 30 September 1973, Mr Petersen confirmed his interest in one of the posts concerned on condition, however, that the post was graded in Category A 4. Mr Petersen stated that, in the event of appointment in Category A5, he would reserve his final decision pending notification of the step in that grade cooresponding to the post concerned.

Subsequently, by letter of 9 October 1973, Mr Petersen was informed by the Commission that the provisions of the Staff Regulations of Officials precluded his immediate appointment in Grade A4 but that, in the event of appointment in Grade A5, it would be possible for him to be granted additional seniority. On 28 November 1973, the Commission informed Mr Petersen of his appointment as Principal Administrator in Category A5, Step 3, and of his assignment to the Directorate-General for Competition, Inspection Directorate, Inspection — Energy and Steel Division.

Mr Petersen accepted the appointment by letter of 8 December 1973 and entered the service on 1 January 1974 on a probationary basis. On 1 October 1974 he was established in Grade A5.

Subsequently, Mr Petersen expressed doubt as to the accuracy of the information given, before his entry into the service, by the Commission about the provisions governing the appointment of officials. In his view, he was entitled to treat compulsory military service as experience. In the belief that, in consequence, he fulfilled the conditions required for appointment in Grade A4, Mr Petersen submitted, on 19 February 1975, a complaint pursuant to Article 90 (2) of the Staff Regulations of Officials, which was registered on 24 February 1975. In the complaint he requested that his position should be reconsidered and that he should be placed in Grade A4.

As the Commission did not reply within the prescribed period, which amounts to an implied decision rejecting his complaint, Mr Petersen lodged the present application, which was dated 22 September 1975 and entered in the Court Register on 23 September 1975.

By Order of 20 May 1976, the Court (First Chamber) decided to hear the testimony of the applicant, appearing in person, and of Mr Junger, an official of the Commission of the European Communities, concerning the course of the discussion between them on 28 September 1973.

II — Conclusions of the parties

The applicant claims that the Court should:

1) declare null and void the implied decision of rejection constituted by the failure of the appointing authority to reply within four months to the complaint submitted by the applicant on 19 February 1975.

2) declare illegal the Commission s refusal to place the applicant in Grade A4 on the date on which he took up his appointment.

3) declare that, in the circumstances, the applicant's acceptance of Grade A5 is not binding upon him.

4) declare that, in consequence, the Commission must revise the applicant's original classification and upgrade him from Grade A5/3 to Grade A4/1.

5) order the commission to pay the costs.

If the Court does not see fit to uphold the four heads of the main claim the applicant submits, in his reply, the following alternative claim:

that the Court should hold that on the date on which he took up his appointment the applicant satisfied the seniority requirements for appointment in Grade A 4.

The defendant contends that the Court should:

1) dismiss the application as inadmissible;

2) in the alternative, dismiss the application as unfounded;

3) in any event, order the applicant to pay the costs.

III — Submissions and arguments of the parties

A — Admissibility

The applicant states that he lodged a complaint pursuant to Article 90 (2) of the Staff Regulations of Officials as soon as he was aware of the rule allowing military service to be taken into account as well as university study in determining seniority. The period provided for lodging such a complaint should start to run from the date on which he was sufficiently informed about the grading provisions of which he became aware less than one week before he lodged his complaint. Before that date, he justifiably believed the statements of the appointing authority since all the legal considerations with a bearing on the question were exclusively available to and under the control of the Commission.

The defendant contests the admissibility of the application on the basis of the wording of Article 90 (2). It emphasizes that the appointment decision which was the subject-matter of the complaint was notified to the applicant by letter of 28 November 1973. In the absence of any new factor which would cause the period to start to run afresh, the period of three months provided for in Article 90 (2) expired towards the end of February 1974. No ground advanced by the applicant constitutes a new fact such as to change the essential circumstances and conditions which governed the adoption of the original decision (see the Judgment of the Court of 22 March 1961 in Joined Cases 42 and 49/59, SNUPAT v High Authority of the ECSC, Rec. 1961, p. 101).

The provisions governing the grading of officials were available to the applicant (a copy of the Staff Regulations was sent to him at the same time as the letter of 28 November 1973) and the applicant did not apply for any additional information until October 1974.

With regard to the application submitted in this case, although it is true that a complaint can be lodged at any time notwithstanding the period laid down in Article 90 (2), it can extend the period prescribed by Article 91 (2) of the Staff Regulations only if it was lodged before the expiry of the period of three months provided for in Article 90 (2).

The applicant replies that the letter of 28 November 1973 constitutes, as far as grading in Grade A4 was concerned, an administrative measure of rejection, in respect of which the reasons upon which it was based were given in the letter of 9 October 1973. The period for lodging an application against such a measure can, under the general principles of administrative law, start to run only from the date on which the person to whom the measure is addressed has every reason to know that the grounds on which the measure is based were incorrect. If the opposite were held to be true its effect would be to permit an administrative authority adopting correct measures to mislead those to whom the measure is addressed and to take advantage of their good faith with the result that, in a comparatively short time, they would be deprived of all legal protection against such measures.

The applicant also draws attention to the principles of equity operative in English law which must now form an integral part of the legal system of the European Communities.

Under those principles courts are given a wide discretion to. ignore limitation provisions which operate unfairly against one party.

The applicant once more specifies the circumstances of fact which, in his view, are decisive in determining the period within which he ought to have taken action. In particular, he maintains that it was only through a note of 21 July 1975 from the Head of the Staff Regulations Directorate to the Head of Mr Gundelach's Private Office (Annex 15 to the application) that he became fully aware of the recruitment rules which had been decisive in his case. It is reasonable to regard the period for submission of the complaint as starting to run from that date.

In any case, up to October 1974, he accepted in good faith that the reasons given for the administrative measure of rejection were correct and, as this was done in good faith, it is reasonable in law that this should suspend the period within which the complaint must be lodged. He began to be suspicious in October 1974 but, because of the defendant's information methods, he was never absolutely sure, with the result that, before the lodging of the complaint, he was at no specific time in possession of the information necessary to cause the period to start running.

The judgments of the Court of Justice quoted by the defendant have no relevance to the present case.

In the applicant's view, a reasonable degree of protection by the law requires that the objection of inadmissibility should not be upheld. He adds that, in the present case, no third party would be likely to be adversely affected if his application were upheld. In its rejoinder, the defendant denies that the explanations given to the applicant can be regarded, in administrative law, as a statement of the reasons for a subsequent decision engaging him in Grade A5.

If the applicant's argument on this point were upheld, it would be necessary to hold that the ‘statement of reasons upon which the decision is based’ cannot be impugned, since the applicant has not fulfilled the conditions of seniority required for classification in Grade A4.

Even if the contrary were the case, the ‘statement of reasons’ is correct in the sense that it conveys the purely factual considerations which gave rise to the defendant's decision. The applicant does not appear to have claimed that an incorrect ‘statement of reasons’ was intentionally given him but simply that it embodied an incorrect application of the rules of law. In those circumstances, the defect vitiating the statement of reasons has no bearing on the expiry of any period for lodging an application.

As regards considerations ‘of equity’ tending to suspend the running of the period for lodging an application, the defendant refers to the case law of the Court of Justice which specifies the conditions provided for under Articles 90 (2) and 91 (3) of the Staff Regulations. (Judgment of 21 February 1974 in Joined Cases 15 to 33, 52, 53, 57 to 109, 116, 117, 123, 132 and 135 to 137/73, Schots-Kortner and Others v Council, Commission and Parliament [1974] ECR 177; and the judgment of 15 December 1966 in Case 34/65, Mosthaf v Commission of the EAEC [1966] ECR 521). It further refers to the judgment of 12 December 1967 in Case 4/67, Muller v Commission [1967] ECR 365, in which it was held that the periods prescribed for instituting proceedings are mandatory in nature and that the parties cannot derogate from them. The applicant cannot therefore invoke the alleged need to apply to new officials special rules on the time-limit for bringing proceedings.

B — The substance of the case

Application

The applicant states that appointment in Grade A4 was a condition precedent of his acceptance of a post at the Commission. This was the attitude to which he had adhered both orally during the interview on 28 September 1973 and in subsequent correspondence.

The representative of the Commission promised him that he would secure appointment in Grade A4 in so far as that appointment was compatible with the rules governing recruitment. The applicant said only if this grading proved absolutely impossible would he be willing to reconsider his position and that he accepted the post in Grade A5 only after the Commission informed him that the relevant rules did not allow of his being granted the grade requested.

He states that he began to have doubts about the accuracy of this information in October 1974, in particular after being in touch with the Private Office of Mr Gundelach, who was conducting a general inquiry into the level at which Danish candidates were being engaged.

Finally, in February 1975, he became aware of the rules permitting compulsory military service to be treated as equivalent to experience.

I — First submission

The applicant contends that there was an infringement of Article 27 of the Staff Regulations of Officials and a misapplication of the recruitment provisions applicable to officials of the EEC. His appointment in Grade A4 was refused on the ground that he did not possess 12 years experience. As he had obtained his final degree in January 1963 he had only 11 years of experience when he entered the service of the Commission. A note dated 16 September 1975 sent by the Head of the Recruiting, Appointments and Promotion Division to the Danish Private Office confirmed for the first time that his seniority had been calculated with effect from September 1962.

The applicant considers that if this statement reflects the present view of the Commission he completed the 12 years' seniority at the end of his probationary period.

In any event, the Commission should, as in previous cases, have been able to make up for any slight lack of seniority by taking into account:

a) military service,

b) university study, and

c) experience acquired during the period of study.

a) In its report of 15 February 1974, the Provisional Grading Committee considered that it had to regard a period spent on military service as experience, subject to a maximum of two years without, however, this automatically leading to a recommendation of classification in a higher grade. The applicant considers that compulsory military service can be regarded as experience qualifying for promotion to a higher grade on condition that such service does not constitute a disproportionate part of the total length of time of the candidate's previous experience. In his case, experience based on military service would have been assessed as less than 10 % of all his experience; he does not therefore claim to be entitled to Grade A4 only on the basis of his military service.

b) The applicant refers to the difficulties created by the fact that, in the various Member States, the length of university study varies from country to country. In fact, in Denmark a university graduate begins his career two and a half years later than the graduate of a British university. In one borderline case at least, part of the period of university study has been taken into account in calculating the seniority of a Danish candidate in order to make up for this difference between the two systems. According to the applicant, even if he were granted four months' additional seniority, this in no way alters the fact that he was the subject of discrimination.

c) The applicant also maintains that, in certain cases, the appointing authority has followed the practice which enables experience acquired during university study to be included in calculating seniority. In this connexion, he points out that, during university vacations, he was employed for approximately six months in a bank in Denmark and for about two months in a public prosecutor's office.

II — Second submission

The applicant contends that there has been an infringement of the principles of law. He maintains that he was given a valid promise of appointment in Grade A4 by a person legally authorized to act in the name of the Commission, subject only to the reservation that the appointment was not found to be incompatible with the recruitment rules in force. The Commission was bound by this promise unless the reservation stated was found to apply.

According to the applicant, the Commission was under a duty to exercise its discretion in his case in accordance with the rules of recruitment having regard to the interpretation and practice applied in previous cases and to do so on the basis of the principle of the most favourable treatment.

The applicant declares that the Commission's statement that the recruitment rules did not allow of his immediate appointment in Grade A4 constitutes a misrepresentation of the facts which finally induced him to accept a post in Grade A5. He has not lost the rights which arose from the promise of a post in Grade A4 as a result of his acceptance of an offer of a post in Grade A5, or again, as a result of his failure to take action.

If the assertion that he could not be appointed in Grade A5 is incorrect, he ought not to be bound by his acceptance of an offer of employment in Grade A5.

As far as his failure to take action is concerned, the applicant explains that he had every reason to believe that the matter had been the subject of thorough examination prior to the communication in question. Moreover, considering the complexity of the rules and practices in question, which are the outcome of internal considerations entirely under the defendant's control, it is understandable and excusable that the applicant, in all good faith, allowed so long a time to elapse before lodging a complaint against the misrepresentation of the facts indicated above.

Defence

The defendant disputes the existence of a promise made to the applicant by one of its servants to the effect stated in the application. It emphasizes that, during the interview on 28 September 1973 with Mr Junger, an official of the Directorate-General for Competition, the applicant was informed of the rule on ‘experience’ and of the fact that decisions as to grading could be taken only after obtaining the opinion of the Grading Committee.

With regard to the appointment of officials in a grade other than the basic grade of their category or career bracket, the defendant refers to the provisions of Title III of the Staff Regulations, to the criteria to be applied with regard to the classification by grade and step in the career bracket A4/A 5 which were adopted on 6 June 1973 by Mr Borschette (Annex 3) and to the Grading Committee's report of 15 February 1974.

The latter refers in the following terms to the questions raised in the present case:

pages 2-3:

1) Difference in the length of university studies. In order to ensure that the same value is given to practical experience acquired after obtaining a first university degreee, the committee has reached the conclusion that, after the appropriate adjustments have been made in the case of Danish and British nationals, this ‘experience’ should be taken into account as from the fourth or fifth year of study onwards.

page 3:

2) Period spent in military service See Application under 1 (a) above.

page 7: At the Grade A4 level, the -Committee has shown particular care in making use of the power to grade in Grade A4 candidates possessing 12 or more years' experience after obtaining a first university degree. In fact, with regard to the period of employment from 12 to 14 years the Committee has accepted that classification in Grade A4 is possible only in so far as the Committee was assured that the candidate to be appointed possessed experience specifically related to the post to be filled.

As regards the period of university studies, the Grading Committee has calculated the experience of Danish candidates as from the beginning of their sixth year of study and that of British candidates with effect from the fifth year after the beginning of their studies.

However, experience acquired during study before obtaining a first university degree and the probationary period completed by an official after his appointment have never been taken into account in making an appointment in a particular step or grade in Category A.

In the case of the applicant, therefore, experience was calculated as from the beginning of the sixth year of university study, namely from September 1962. The same concession was made in the case of the Danish official referred to in the application.

I — First submission

The defendant contends that the reference to Article 27 of the Staff Regulations is based on a misconception.

The applicant probably intended to claim that there has been an infringement of the third paragraph of the said article in that, in certain cases, the experience of Danish candidates was deemed to have begun at a later date than that applied in the case of British candidates.

The defendant refers to its above-mentioned explanation of the way in which the Grading Committee takes account of the factors mentioned.

The applicant has supplied no evidence to show that the factors described in the report received different consideration according to the nationality of the candidate concerned. He has, therefore adduced no proof whatever that any differentiation, as regard grading, between, on the one hand, Danish candidates and, on the other, other candidates of the same age, was based on the nationality of the said candidates in such a way that posts were reserved to the nationals of a specific Member State.

In giving its opinion concerning the appointment of the applicant in Grade A5, the Grading Committee duly applied all the rules governing the grading of officials and, in any event, did so without discrimination according to nationality.

II — Second submission

The defendant states that it is not clear from the application which legal principles are alleged to have been infringed.

The applicant has been unable to provide evidence that he received a promise of appointment in Grade A4. Furthermore, there could have been no misrepresentation of the facts to him since compliance with the relevant rules made it impossible for him to be appointed in Grade A4.

Again, the discussions between the applicant and Mr Junger cannot be regarded as having created a legal relationship between the applicant and the defendant; these discussions were in the nature of preliminary talks on the conditions of recruitment.

Even on the assumption that the applicant was misinformed by Mr Junger, which the defendant denies, this would amount to nothing more than a misinterpretation of a provision of the Staff Regulations and does not necessarily constitute in itself a wrongful act or omission capable of giving rise to proceedings (see the Judgment of 13 July 1972 in Case 79/71, Heinemann v Commission, Rec. 1972, p. 579). In order to do so the applicant must prove that the defendant caused him ‘a still subsisting injury’ (see Case 79/71).

The information alleged to be incorrect was given in connexion with a hypothetical appointment which was never made. The question of a possible appointment in Grade A4 was treated separately from that of the applicant's possible acceptance of Grade A5. Accordingly, the only interpretation that can be placed on the alleged incorrect statement is that the applicant was able to choose between possible classification in Grade A5 and other prospects of employment open to him and the statement cannot in consequence be regarded as creating an entitlement to regrading.

The defendant states that it was entitled to grade the applicant in Grade A5 because, although under Article 31 of the Staff Regulations it may grade a candidate in a grade in Category A other than the basic grade, there is no obligation on it to do so, nor was it in any way obliged to grade the applicant in Grade A4.

Reply

The applicant adheres to the statement that the defendant made him a clear and unequivocal promise which fulfils the condition precedent described in the application.

He claims that he has no means of knowing Mr Junger's status or of any restrictions on his authority. Nothing by way of explanation on this point was brought to his knowledge either during the interview in Brussels or in correspondence. On the contrary, he had every reason for believing that Mr Junger represented the Directorate-General for Personnel and Administration and that he was authorized to deal with the question of grading.

I — First and second submissions

The applicant states that the application of all the rules governing recruitment quoted by the defendant are subject to the principle of equality which the administration must, generally speaking, observe and more particularly to the restrictions contained in Article 27 of the Staff Regulations of Officials.

As regards the differences in the length of study, the defendant took as the basis for calculating seniority a period of four to five years as the average for the normal length of study. Taking this average as the basis, a certain number of years are deducted if the basic length of study in a Member State is shorter and a certain number are added if it lasts longer. This is not, however, enough if, in the case of Danish candidates, the beginning of the sixth year of study is taken as the starting point and, in the case all British candidates, it is the beginning of the fifth -year of study. Systematic application of the lower limit of the period to British candidates and of the higher limit to Danes is clearly quite contrary to the principle of equality so far ar nationality is concerned.

As regards the second submission, the applicant contends that, in so far as it was permitted to calculate seniority as from the end of the fourth year of study (June 1961) or, as in the case of British candidates, from the fifth year (September 1961), he had in any case a possible seniority of over twelve years and, because of the Commission's promise, should have been graded in A4.

As regards compulsory military service, the applicant recognizes the need to avoid a situation in which a candidate is classified in a higher grade solely on account of seniority consisting essentially in military service. In his case, however, military service represents only about 10 % of his seniority. Under the principle of equality of treatment laid down in the report of 15 February 1974, the defendant must, therefore, take the eighteen months of compulsory military service into account in calculating his seniority.

As regards experience acquired during the period of study, the applicant explains that, after the first part of his course of study (May 1959), he was in paid employment for eight to nine months (Annexes 5 to 7). He made no reference earlier to these activities because he was not in a position to be aware of the rule allowing odd periods of experience to be taken into account. Shortly before his application was lodged, he learned from two Danish colleagues that they were asked a question concerning experience acquired during their course of study. In their case the grade asked for was granted after production of the corresponding evidence. The defendant should, at least, have adopted the same practice in the case of all candidates and taken the trouble to obtain the relevant information.

The defendant's attitude must be regarded as being seriously at fault and the burden of proof of the causal link between the defective administrative measure and the decision taken by the person to whom the notification was addressed must therefore be lightened. The purpose of the exercise of this discretionary power is extraneous to recruitment and is, in consequence, illegal. It may conceivably constitute misuse of powers involving the nullity of the administrative measure complained of.

II — Second submission alone

The applicant claims that there has been an infringement of a number of general legal principles stemming from the law of obligations and administrative law.

Under the basic principles of the law of obligations, the telegram of 21 September 1973 constitutes a special authority conferred on Mr Junger under which he is empowered to negotiate with the applicant and to commit the defendant. In that communication there is no indication of restictions on this authorization and the determining question is, accordingly, whether he was aware, or ought to have been aware, of those limits.

On this point, the applicant maintains that at no time during the meeting in Brussels did he have any reason to suppose that, when Mr Junger made him the promise in question, he was exceeding his authority. In view of this and of the basic principles of the law of obligations the promise is binding on the principal.

The same applies when the facts are looked at from the point of view of public law. The authority in question can be described as a departmental communication notified by the above-mentioned telegram in which no reference was made to any restrictions on the delegation of authority.

Under current principles of administrative law, even if a favourable administrative measure, the promise in the present case, has been adopted contrary to a departmental communication, it is not void for lack of authority if the person to whom the measure is addressed was not or could not be aware of this lack of authority.

The judgments quoted by the defendant in no way affect this statement since, in the present case, the administrative measure is vitiated not because of a mistake of law but, on the contrary, by a lack of authority which the person to whom the measure was addressed could not have envisaged.

The applicant maintains that, as the defendant was bound by the promise, it was under a duty to exercise its discretion so that the recruitment rules in force are applied to him as broadly as possible as regards classification in Grade A4.

Furthermore, the statement of the grounds upon which the decision was based given in the letter of 9 October 1973 constitutes, in this case, a mistake of law which means that, under the basic principles of the law of obligations, the declaration of intention by the person to whom the measure was addressed to which it gave rise is not binding upon him.

Both under the principles of private law and of public law, the decisive question for the purpose of determining whether the appointment in Category A5 was or was not valid is whether the incorrect statement of the grounds on which the decision was based was the decisive factor in the acceptance of the offer of the A5 post. The answer to this question must clearly be in the affirmative.

Rejoinder

The Commission denies that, whatever words were used at the meeting on 28 September 1973, they amounted to a promise to classify the applicant in Grade A4. The existence of such a promise is confirmed neither by the applicant's letter of 30 September 1973 nor by Mr Junger's letter of 9 October 1973.

In fact, Mr Junger had neither the authority nor the power to take decisions concerning the engagement of candidates or their classification.

On this point, the defendant emphasizes that the telegram summoning him makes clear the distinction between the Directorate-General Competition (Directorate-General IV) where the applicant was asked to contact Mr Junger, and the Recruitment Service (Directorate-General IX) to whom the applicant had to apply subsequently.

Moreover, the distribution of power between Directorate-General IV and the appointing authority emerges clearly from the subsequent correspondence.

I — As regards the first and second submissions relied upon

The defendant considers that the principles contained in the report of the Grading committee are fully commensurate with the prohibition on discrimination based on race, religious belief or sex and that, in view particularly of the differences between the conditions under which the candidates received their education, they guarantee that candidates coming from various Member States have an equal chance.

The basic principle with regard to the grading of new officials in Category A is, in the words of Article 31 of the Staff Regulations, that they must be appointed ‘to the starting grade of their category or service’ which, in the case of career bracket A5/A 4, means recruitment at the first step in Grade A5. Any higher grading of officials from the new Member States would, consequently, amount to a departure from the said basic principle. The criteria applied thereto ought to have taken into account the need for those officials to be treated in the same way as officials of the old Member States already occupying posts, so that there was no discrimination against either of the two groups. Furthermore, candidates from the new Member States ought to have been given equality.

This is the context of the general rule requiring fourteen years' experience as a qualification for classification in Grade A4. The applicant has forgotten that classification in that grade after only 12 years is restricted to special cases.

But, in the defendant's view, the applicant is in no sense a special case.

The defendant denies that the application of the criteria in the case of the applicant involved an infringement of the principles of equal treatment or entailed a misuse of powers. It rejects the criticism, contained in the reply, of the way in which the principles in question were applied.

a) Differences in the length of university studies If the length of experience were calculated as from the beginning of the fifth year of study, for example, (as described in the reply), the applicant would thus be treated in the same way as British candidates who have completed a period of three years' study and who also possess one year's direct experience, although at that date he himself would not yet have completed the study of the basic branches of law; the applicant's career at that juncture cannot be compared with that of a British candidate.

b) Compulsory military service The interpretation placed upon the rule applied by the Grading Committee was that, while compulsory military service could undoubtedly be taken into account in calculating the step in the grade it could result in classification in a higher grade (A 4 instead of A5) only in exceptional circumstances, of which there was no question in the applicant's case.

c) Experience acquired during university study As this type of experience has never been taken into account, it would conflict with the general principles of equal treatment to have regard to them in the applicant's case. In the absence of details on which to base profitable inquiries, the defendant is unable to make any observations on the comments, contained in the reply, about the two Danish officials.

II — As regards the second submission relied upon

The defendant contends that the applicant was, or at least ought to have been, fully aware that Mr Junger could not have any authority to commit the Commission in respect of his candidature (see above).

The contentions of the applicant ignore the fact that there has been in no sense a delegation of any power of decision whatever to Mr Junger.

The submission based on the existence of an alleged promise has no bearing with regard to the appraisal of the arguments put forward: the relationship between the defendant and its officials is based on the Staff Regulations and not on any agreement. (See the Judgment of 19 March 1975 in Case 28/74, Gillet v Commission [1975] ECR 463 and the judgment of 28 May 1970 in Joined Cases 19, 20, 25 and 30/69 Richez-Parise v Commission [1970] ECR 325).

A promise along the lines alleged by the applicant cannot in any case compel the defendant to appoint the applicant to a post in Grade A4 contrary to the recruitment rules normally applicable. Nor, moreover, has the applicant adduced any evidence at all of the existence of a promise of such a nature that he can invoke as the foundation of any kind of right. Even on the assumption that such a promise was made, it must be regarded as having been revoked by the defendant's letter of 9 October.

The defendant also rejects the appraisal of the facts from the viewpoint of public law: since what Mr Junger said formed part of the preliminary stage of recruitment, it cannot be treated as an administrative measure.

IV — Oral procedure

The parties presented oral argument at the hearing on 23 September 1976.

During the hearing, evidence was given by the applicant and Mr Junger concerning the course of the discussion they had on 28 September 1973.

The Advocate-General delivered his opinion at the hearing on 26 October 1976.

Law

1. By application of 22 September 1975 the applicant, who entered the service of the Commission on 1 January 1974 and was established as an official in Grade A5 on 1 October 1974, has requested the annulment of the decision, implied by the absence of a reply by the appointing authority, rejecting the complaint which he had lodged on 19 February 1975 under Article 90 (2) of the Staff Regulations of Officials.

2. In that complaint he requested that he be placed in Grade A4 with retroactive effect from the date on which he entered the service on the ground that as from that date he satisfied the conditions then required for appointment in that grade.

3. The application seeks, in addition, a declaration that the refusal of the Commission to place the applicant in Grade A4 is illegal, that his acceptance of Grade A5 is not binding upon him and that, in consequence, the Commission must amend his original classification and place him in Grade A 4/1.

4. The defendant states that the implied rejection of the complaint is merely confirmation of the refusal, contained in a letter of 9 October 1973, to appoint the applicant in Grade A4, and of his appointment in Grade A5 by decision of 28 November 1973.

5. The contested decision, which merely confirms previous decisions, does not have the effect of starting a fresh period for lodging an appeal against the 1973 decisions which were not contested within the prescribed period to run.

6. The applicant's rejoinder is that it was only at the end of 1974 that he learned that, with regard to the recruitment of officials at the time of the accession of new Member States, criteria for grading had been laid down for the purposes of the application of Article 31 (2) of the Staff Regulations of Officials by the competent member of the Commission for use by a Grading Committee responsible for making recommendations to him.

7. So long as he remained in ignorance of the adoption of the said criteria, the correct application of which should, in his view, have resulted in his being classified in Grade A4, but to which no publicity had been given, it was impossible for him, in an application for annulment, to claim that his classification in Grade A5 was vitiated by illegality resulting from failure to comply with the said criteria.

8. This is particularly so since the appointing authority was, from the beginning, aware of his desire to obtain an A4 post and one of the officials who had been made responsible for the recruitment of staff from the new Member States had undertaken to meet his wishes if the regulations in force made this possible.

9. The parties were not, in consequence, ad idem and the rules of natural justice require that the period within which this deficiency, which vitiates the act of appointment and acceptence, can be relied upon must begin to run only from the time when he was in a position to discover his mistake.

10. In any event, the applicant's argument amounts to claiming that the discovery by him of the existence and implementation of the aforementioned criteria for grading constitutes a new fact such as to start running in his favour a fresh period for lodging an appeal.

11. According to this argument, these criteria constituted elements of the legal system which were applicable at the time of his appointment and of which, as such, he ought to have been notified.

12. However, consideration, of the legal nature of these criteria, which is necessary for a decision on the admissibility of the application, also arises in connexion with the examination as to whether the application is well founded.

13. The examination as to admissibility must, therefore, be joined to that of the substance of the case.

14. It is clear from the preparatory inquiries in this case that the applicant relied on the statements made to him by Mr Junger, an official in Grade B 1 who is responsible for looking after the candidates and for helping them to contact the heads of the departments to which their appointment might be considered.

15. This official was in no way authorized to give undertakings of the kind alleged and, moreover, he denies having done so.

16. In any case the appointment of the applicant cannot be the outcome of an agreement but is based on a unilateral decision of the appointing authority.

17. It follows from this that the applicant's claims, in so far as they are based on the absence of an agreement concerning the terms of his engagement, must be dismissed from the outset and can have no bearing on the admissibility of the application.

18. At the time when officials were being recruited, consequent upon the accession of the new Member States, the appointing authority was, under Article 1 of Regulation No 2530/72 of the Council of 4 December 1972, authorized to make liberal use of Article 31 (2) and of Article 32 (2) of the Staff Regulations of Officials, under both of which it is permissible to make exceptions from the usual rules governing appointment into grades in Category A.

19. On 6 June 1973, the member of the Commission representing the appointing authority for, inter alia, Grades A4 and A5, set up a Grading Committee to make recommendations to him regarding the grading of candidates who were nationals of the new Member States.

20. At the same time he instructed this Committee that, in its work, it must abide by certain criteria in order to ensure the necessary consistency between the recommendations to be made.

21. These criteria were particularly concerned with the way in which experience prior to engagement was to be assessed, taking account of university degrees and the completion of any period spent in military service.

22. There was however no question of the automatic application of these criteria since they were exclusively intended to help the appointing authority in making the selections which it was called upon to make on the recommendation of the Committee.

23. Moreover, these criteria and the setting up of the Grading Committee constituted purely internal measures the purpose of which was to facilitate the many selections and decisions which had to be made during a comparatively short period but which were not intended to confer rights or expectations of any kind whatsoever on those concerned.

24. They left the appointing authority free to take decisions regarding the grades to be offered for the recruitment of the candidates.

25. The fact that neither the applicant nor, moreover, the other candidates were informed of the said criteria did not, therefore, constitute an omission since those candidates could not call them in aid nor a fortiori challenge in proceedings before this Court the correctness of the assessments made in their case when those criteria were applied.

26. In consequence, the discovery by the applicant of the existence of these criteria cannot constitute a new fact such as to start the period for lodging appeals to run afresh.

27. It has, moreover, become clear in the course of the proceedings that, in the case of the applicant, the various criteria were applied fairly and without discrimination.

28. The application must therefore, in any case, be dismissed.

Costs,

29. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

30. The applicant has failed in his submission.

31. Nevertheless under Article 70 of the Rules of Procedure the costs incurred by the institutions in applications by servants of the Communities shall be borne by the institutions.

On those grounds, THE COURT (First Chamber) hereby:

1 Dismisses the application;

2 Orders each party to bear its own costs.