JUDGMENT OF 1. 12. 1983 — CASE 343/82 MICHAEL v COMMISSION
In Case 343/82
THE COURT (Third Chamber) composed of: Y Galmot, President of Chamber, U. Everling and C. Kakouris, Judges, Advocate General: G. Reischl Registrar: J. Biancarelli, Legal Secretary
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the procedure, the conclusions, submissions and arguments of the parties may be summarized as follows:
I — The legal context, the facts and the procedure
A — The legal context
In March 1981 the Commission decided to inform all the members of its staff of its decision of 6 June 1973 on the criteria applicable to grade and step classification upon recruitment.
It is stated in the preamble to that decision that it is based, in particular, upon Articles 30, 31 and 32 of the Staff Regulations of Officials of the European Communities, that it has, for years, been the main principle of the recruitment policy to recruit in the starting grade of each category, and that it is necessary to make exceptions to that principle to meet particular departmental requirements, so as to ensure, in particular, that the Commission secures the services of candidates who already have sound practical experience. Finally, it is stated that such exceptions must be kept to the absolute minimum.
Article 1 of the decision of 6 June 1973 (hereinafter referred to as “the decision”), lays down the principle that an official should be appointed in the starting grade of the starting career bracket of his category or service.
Article 2, which concerns appointment to career brackets other than the starting career bracket, provides that, by way of derogation from Article 1, the appointing authority may appoint the selected candidate to the starting grades of certain career brackets if the candidate can give evidence of professional experience of a specified number of years. Professional experience is to be assessed with regard to the post to be filled and on the basis of all the activities in which the candidate has engaged before recruitment.
Article 3 of the decision, which concerns appointment to a higher grade of a career bracket and which is the article applicable in this instance, provides that:
“By way of derogation from Article 1, the appointing authority may, exceptionally and in order to meet recruitment requirements, appoint a candidate to the upper grade in the starting or intermediate career bracket, if the candidate gives evidence of professional experience, within the meaning of Article 2, of at least ... five years for Grade L/A 6.”
Annex II to the notice publishing the decision, which is headed “Practical Application — General Survey”, states in paragraph 1 (a) thereof that practical experience is to be assessed by reference to the post to be filled in the light of all the activities in which the candidate has engaged prior to recruitment. This applies to all grades.
Paragraph 3 of that annex, concerning Career Bracket L/A 7 - L/A 6, provides as follows:
“(a) As in Career Bracket A 7 - A 6, post-graduation practical experience of a level below L/A or A work is disregarded (e.g. temporary secretarial work). (b) Experience as a freelance is reckoned as half the equivalent period in fulltime employment. (c) 100 % credit is given for relevant experience at a level equivalent to Category A work (as translator, economist, lawyer, etc.) (d) The position regarding language teaching is as follows: (1) Experience in teaching the mother tongue is disregarded; (2) Experience in teaching a foreign language counts as (a), (b), (c) above.”
B — Facts
The applicant entered the service of the Commission as a temporary servant in Grade L/A 7, Step 3, on 16 April 1980. As from 1 January 1981 he was appointed a probationary official as a translator in the Greek Translation Division in the same grade and step.
On 9 June 1981 he submitted an application for the revision of his classification in grade and step. The Grading Committee rejected that application and he was notified of that rejection on 3 November 1981.
Subsequently, he sent a letter, dated 4 February 1982, to the Director-General for Personnel and Administration, in which he explained that, in view of his university degrees and his professional experience, he considered that he had been classified in Grade L/A 7, Step 3, as a result of a mistake; he therefore requested the Director-General to reconsider that classification on the basis of the Commission's decision of 6 June 1973.
By a letter dated 27 May 1982, the Director-General informed the applicant that the Grading Committee had confirmed its initial opinion recommending classification in Grade L/A 7, Step 3, on the following grounds:
“1. Only successful candidates who can claim experience of fulltime translation may be appointed to the upper grade in Career Bracket L/A 7 -L/A 6. 2. Since postgraduate studies are not taken into account, the Committee concluded that your ‘peripheral’ experience or experience treated as such is to be calculated as from January 1973 and amounts to five years and eight months.”
On 28 June 1982 the applicant lodged a complaint pursuant to Article 90 of the Staff Regulations, against the abovementioned decision of the Grading Committee.
By a letter dated 1 October 1982 and notified to the applicant on 4 October 1982, the appointing authority informed Mr Michael that it was obliged to reject his complaint.
On 28 December 1982 the applicant brought the present action against the decision of 1 October 1982. The action was registered at the Court on the same day.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Third Chamber) decided to open the oral procedure without any preparatory inquiry. However, the Commission was requested to reply to the following questions before the hearing:
1) Why did the Commission wait until March 1981 before informing its staff of the decision of 6 June 1973?
2) Were any measures taken to publicize that decision and if so what measures?
3) In taking that decision, did the Commission intend to adopt a general provision for giving effect to the Staff Regulations within the meaning of Article 110 of the Staff Regulations oían internal “directive”?
4) Does the Commission still take the view, advanced in its written observations, that the provisions of the decision of 6 June 1973 which allow for exceptions from the general principle of classification in the starting grade of the starting career bracket are based on Article 32 of the Staff Regulations? Is it not rather the case that they are based on Article 31 ?
5) If the Commission had considered that Mr Michael satisfied all the conditions laid down in the decision of 1973, would it have classified him in Grade L/A 6?
6) The Commission is requested to specify the number of its servants who since 1973 have been classified in the grade above the starting grade on the basis of the decision of 1973?
7) The Commission is requested to specify the number of its servants who, since 1973, despite satisfying the conditions laid down by the decision of 1973, have not been appointed to a grade above the starting grade for reasons relating to “recruitment requirements”.
8) What are the possible recruitment requirements that might prevent Mi-Michael from being classified in Grade L/A 6, provided that he satisfied the conditions laid down by the decision of 1973?
9) Does the Commission acknowledge the accuracy of the applicant's statements relating to the table of staff in the Language Service and the absence of any Greek translator in Grade L/A 6?
II — Conclusions of the parties
1. The applicant claims that the Court should: Declare the application admissible; Annul the Commission's decision of 1 October 1982 rejecting the applicant's complaint; Order the defendant to reclassify the applicant in accordance with the criteria contained in the decision of 6 June 1973; Order the defendant to pay the whole of the costs.
2. The Commission contends that the Court should: Dismiss the action as unfounded; In the alternative, dismiss the action as unfounded inasmuch as it seeks an order that the defendant should reclassify the applicant; Order the applicant to pay the costs.
III — Submissions and arguments of the parties
A — Submission based on the alleged breach of the decision of 6 June 1973
The applicant claims that he satisfies the conditions laid down in Article 3 of that decision and defined in paragraph 3 of Annex II thereto for classification in the upper grade of the relevant career bracket.
1. The nature, purpose and scope of the decision of 6 June 1973
a) The applicant submits that the decision was intended, in particular in the context of the problems raised by the enlargement of the Community, to ensure that newly recruited officials enjoy the benefit of uniform rules concerning grading and identical conditions governing recruitment and career prospects. Its aim is therefore to ensure that new officials are assessed objectively and without discrimination, on the basis of their qualifications and experience. That requirement of objectivity precludes any arbitrary intervention by the authority responsible for grading. Although that authority must of course retain a certain discretion, such discretion must be exercised in accordance with the terms of the decision of 6 June 1973. The applicant also maintains that the decision is a binding measure and that the appointing authority must comply with its provisions. It is therefore incorrect to maintain that the submission based on an infringement of that decision is unfounded in law because the applicant failed to cite an infringement of Article 32 of the Staff Regulations. As secondary legislation of binding legal effect, the Commission decision of 6 June 1973 is in itself perfectly capable of constituting an act which may be contested before the Court. The same applies to all legal measures adopted as secondary legislation. Such measures may be the subject of a separate action for annulment, without its being necessary, moreover, to contest the legal basis of such measures, unless it is claimed that the measure is illegal, which is not the case in this instance. According to the applicant, the Commission's view that Article 3 of the decision cannot be said to establish a right for candidates to be appointed to the upper grade in their career bracket, because that provision provides for the possibility of appointing an official to the upper grade in the starting career bracket only exceptionally and in order to meet recruitment requirements, must be rejected for the following reasons : There are no grounds for applying stricter criteria for appointments to lower grades than for appointments to higher grades within the same category. By setting out detailed specifications concerning the conditions for appointment and classification of new officials, the decision of 6 June 1973 considerably reduced the appointing authority's discretion. The weight attached to professional experience, which is the same for the application of Article 2 as for that of Article 3 of the decision of 6 June 1973, cannot differ from one case to another. Moreover, the appointing authority should not confirm the opinion of the Grading Committee, where that committee has disregarded the criteria and conditions laid down in that decision. In this instance, the applicant's request was rejected not because of recruitment requirements but because he did not satisfy the minimum conditions prescribed for taking into account appropriate professional experience. In that respect, and in the alternative, the applicant states that there was no justification for refusing to appoint him to Grade L/A 6 on the ground of recruitment requirements, especially since the Greek division was alone in having no translator in Grade L/A 6. In the applicant's submission, no recruitment requirement militates against the applicant's appointment in Grade L/A 6. Finally, the applicant takes the view that, if the requirement of appropriate and sufficient professional experience is satisfied, access to the upper grade in the Career Bracket L/A 7 - L/A 6 is automatic, as moreover is clear from the statement of grounds contained in the Grading Committee's opinion of 15 October 1981, confirmed by the letter of 27 May 1982.
b) The Commission contends in the first place that the submission is unfounded in law inasmuch as it is based exclusively on the infringement of the decision of 6 June 1973. It is clear from the preamble to that decision that the aim of the decision is simply to determine the conditions in which the Commission intends to apply the appointing authority's power, under the second paragraph of Article 32, to derogate from the general rule of classification in the first step of the official's grade. The applicant ought to have relied on an infringement of Article 32 of the Staff Regulations; the mere infringement of the decision of 6 June 1973 cannot provide grounds for an action for annulment. Indeed, the infringement of a rule which is contained in the decision of 6 June 1973 but which cannot be reconciled with Article 32 of the Staff Regulations cannot provide grounds for an action for annulment. The Commission maintains, secondly, that Article 3 of its decision of 6 June 1973 creates no right on which candidates may usefully rely. In contrast to Article 2, according to which an official who satisfies the relevant conditions is entitled to be appointed to the grade in question, Article 3, concerning appointments to the upper grade of a career bracket, specifies that the appointing authority may make such an appointment exceptionally and in order to meet recruitment requirements. Thus the appointing authority retains absolute discretion, which moreover corresponds to the wording of the second paragraph of Article 32 of the Staff Regulations. It follows that, even if the contested decision may be annulled or varied, such an annulment would not establish a right for the applicant to be appointed to the upper grade in the starting career bracket. That appointment could only be made on the basis of recruitment requirements. Consequently, the conclusions set out in the application asking that the Commission should be ordered to reclassify the applicant must be disregarded.
2. The question whether the applicant satisfies the conditions of professional experience set out in Article 3 of the decision of 6 June 1973.
a) The applicant claims that he satisfies the conditions concerning professional experience, laid down in Article 3 of the decision and defined in paragraph 3 of Annex II to the notice publishing the decision for classification in the upper grade of the career bracket in question. In accordance with paragraph 1 of Annex II, professional experience must be assessed in the light of all the activities in which the candidate has engaged prior to his recruitment and account is taken of practical experience gained from the time when the candidate was awarded the first qualification giving access to the category in which the post falls. Annexed to his application, the applicant provides a biographical note summarizing his university and postgraduate education and claims that 100% credit should be given in respect of his studies in so far as they are of a level equivalent to Category A work, in particular in relation to experience gained as an economist, an administrator and a sociologist. Accordingly, the applicant should be credited with experience of five years and six months. Moreover, in view of the fact that he held posts involving a high level of responsibility in various commercial undertakings from 1973 to 1980, a further six years of additional experience should be taken into account in respect of the applicant's professional activities. The total length of his professional experience therefore amounts to 11 years and six months. Thus it is clearly superior to the five years required under Article 3 of the decision of 6 June 1973, and that is without taking into account several papers published by him. The applicant also states that he participated in 1981 in the first open competition organized for Greek nationals for the recruitment of administrators in Grade A 5 (Competition A/337) and that he was admitted to the competition although professional experience of seven years was required in order to be so admitted; he was moreover successful in that competition. There is therefore inconsistency in the Commission's attitude and in its assessment of the applicant's professional experience. Finally, the applicant seeks to refute the Commission's view that, where the post to be filled is in the Language Service, the only professional experience to be taken into account is experience of translation in the strict sense. He considers that that interpretation is mistaken for the following reasons : In the first place, paragraph 3 (c) of Annex II states that “100% credit is given for relevant experience at a level equivalent to Category A work (as translator, economist, lawyer, etc.)”. That provision must be interpreted in accordance with its wording and none of those qualifications, which are not listed exhaustively, takes precedence over the others. Consequently, the Commission's view, which amounts to requiring experience as a translator-economist or a translator-lawyer, conflicts with the actual letter of the relevant provision. Moreover, such an argument was never previously raised against the applicant and was developed in this instance only to accommodate the circumstances of the case. Furthermore, the provision requires only relevant experience, not experience as a translator, and it is erroneous to maintain, as the Commission does, that Annex II is only indicative, since, inasmuch as it supplements the decision of 6 June 1973 and seeks to ensure the objective and uniform application thereof, it is explanatory and binding in nature. Secondly, the Community institutions have long pursued a recruitment policy whereby translators are recruited, less by reference to degrees and other qualifications in translation in the strict sense, than by consideration of their knowledge of the specialized areas in which they are required to translate. It is therefore impossible to reduce the concept of professional experience exclusively to experience of translation. On the contrary, it should be extended to include experience gained as an economist, especially if, in the course of such duties the person concerned, as in this instance, regularly worked in languages other than his mother tongue. Moreover, the fact that the applicant was assigned to the group specializing in economic and financial affairs clearly demonstrates that translators are assigned principally on the basis of their qualifications in their specialized field and not merely with regard to their ability to translate. Finally, the necessary qualifications, as set out in the notice of competition which led to the applicant's appointment, did not include the requirement of specific knowledge connected with translation or the necessity of professional experience in that area. Whilst the applicant has never claimed that his qualifications and experience amount to fulltime activity as a translator, he wishes to point out that his experience in the field of economics was acquired in an international environment and was completed in conjunction with a thorough and indispensable knowledge of several languages, for which the technique of translation was essential. The applicant draws the conclusion that he should be given 100% credit for his professional experience prior to his appointment.
b) The Commission contends that the applicant's argument is based on a misinterpretation of the decision of 6 June 1973. In the light of the terms of Article 2 of that decision and Annex II to the notice publishing the decision, it may be seen that the applicant's view depends on a misconception of the scope of the expressions “relevant experience”, and “experience assessed by reference to the posts to be filled” and in particular the expression “special experience for the post” contained in Article 32 of the Staff Regulations. The Commission states that the authors of the second paragraph of Article 32 of the Staff Regulations and of the decision of 6 June 1973 certainly did not intend to guarantee for all officials a grade and step determined by reference to the number of years of actual or deemed experience prior to recruitment. They merely sought to permit the appointing authority, if it so desired, to take into account, in so far as appropriate, experience gained by officials prior to their recruitment in a field specifically related to the duties for which they have been recruited. Any other interpretation would be contrary to the principle that each official is appointed to the starting grade of the starting career bracket of his category or service. That objective is particularly important in respect of translators and interpreters since they have been placed in a special category, the Language Service, because their duties are much more specific than those to which officials in the ordinary service may be assigned. The Commission draws the conclusion that the specific experience for translators and interpreters may only be experience of translation and that such experience alone may be taken into account for the application of Article 3 of the decision. Thus when the appointing authority recruits an official to the Language Service, it must, so as to avoid infringing Article 32 of the Staff Regulations, ascertain the extent to which the official's professional experience corresponds to the post of translator or interpreter for which he has been recruited. Consequently, when paragraph 3 of Annex II to the notice publishing the decision of 6 June 1973 envisages the possibility of giving 100% credit for experience gained as an economist or a lawyer, it refers only to the case of a candidate who has been trained as an economist or lawyer and has. actually worked as a fulltime translator. Any other interpretation of paragraph 3 of the abovementioned annex, which is moreover only indicative, would be contrary to Article 3 of the decision of 6 June 1973 and of Article 32 of the Staff Regulations. Since the applicant has never claimed that his qualifications and experience corresponded to fulltime employment as a translator, the Grading Committee's decision, confirmed by the contested decision, is entirely justified. The argument based on the fact that the applicant's qualifications and experience were taken into account for his admission to Competition A/337 is deprived of any significance because the competition in question was for recruitment to the ordinary service and not to the Language Service. In its rejoinder the Commission sets out the following additional considerations:
The training described in the competition notice is that which is required in order to be admitted to the competition or to be successful therein and not that which is required in order to be appointed to the upper grade of the career bracket. If it were otherwise all the successful candidates would have to be appointed to the upper grade of the career bracket, in contravention of the general rule laid down in the Staff Regulations and in the decision of 6 June 1973.
The training required by the competition notice is particularly diverse for the reason that translators are expected to translate texts of all kinds and not specifically economic, scientific or legal texts. It is therefore sought to recruit general translators who may subsequently specialize after they take up their duties (the case of lawyer-linguists is an exception).
The Commission concludes that the applicant's argument, which is based on the view that recruitment policy has regard to candidates' knowledge of the specialized areas in which translators work, cannot be accepted because the nature of the texts which the translators appointed are asked to translate cannot be taken into consideration, since experience is to be assessed by reference to the post to be filled and not by reference to the work actually carried out after appointment. It is moreover impossible to determine, at recruitment, the subjects in which translators will be required to work, because, inter alia, those subjects may change. The Commission notes in that respect that the applicant's view, according to which any experience as a translator, an economist or a lawyer must be given 100% credit, is incompatible with the requirement of specific experience in relation to the post to be filled, and that in view of the fact that the applicant was recruited as a general translator, and as such may be required to translate texts of all kinds, the only experience which may be regarded as specific is that of translation.
The Commission states that the position would perhaps be different if the applicant could show that in his work as an economist he had devoted a certain proportion of his time to translation. In those circumstances he might be credited with professional experience pro rata temporis. But that is not the case in this instance, because the applicant never claimed experience of translation even on a part-time basis and his general assertion that he acquired his experience in an international environment, in conjunction with a thorough knowledge of several languages, is too imprecise for him to be attributed with specific professional experience. Moreover, the applicant himself recognizes that the experience which he claims does not even constitute specific experience as an economist, since he also claims professional experience at a level equivalent to work in Category A both as an administrator and as a sociologist.
The Commission concludes that, if the wide-ranging interdisciplinary experience claimed by the applicant (which is moreover incompatible with the concept of specific experience which he also claims) must be regarded as specific experience for the post of translator, in practice all the translators would be entitled to dispute the grade in which they were recruited. That would entirely negate the effect of the general rule of recruitment in the starting grade of the career bracket and would entail practical difficulties for the Commission. Indeed the applicant is aware of the problem to such an extent that he emphasized the unique nature of his case, which in his view cannot constitute a precedent. However, since he is unable to show how his wide-ranging experience is more specific than that of other translators, the Commission considers that the applicant attributes to it a discretion which is completely arbitrary, the application of which he seeks exclusively in his favour; that result is the opposite to that intended by the decision of 6 June 1973.
B — Submission based on the allegation that the statement of the reasons on which the decision is based is erroneous
1. The applicant, referring to the grounds relied on by the Grading Committee and repeated in the Director-General's letter of 27 May 1982, submits that: The first ground used against him, which is based on his lack of experience of translation in the strict sense, is contrary to the provisions of the decision of 6 June 1973 for the reasons set out above. The second ground on which the rejection of his claim was based, which consists of taking into account in his respect only “peripheral” experience or experience treated as such for a period of five years and eight months, is unfounded inasmuch as the decision of 6 June 1973 does not envisage the concept of peripheral experience. Moreover, the applicant notes that that experience of five years and eight months alone exceeds the five years' experience required under Article 3 of the decision of 6 June 1973 to gain access to Grade L/A 6 and that, in consequence, he is justified in requesting that he should be appointed to Grade L/A 6 with 48 months' seniority and with retroactive effect, in other words as from the date of his entry into the service of the Commission.
2. The Commission considers generally that this submission in reality amounts only to presenting in another form the arguments cited in support of the first submission. It contends, secondly, that the submission is unfounded inasmuch as it challenges grounds other than those which appear in the decision of 1 October 1982, whose annulment is sought. In the alternative, the Commission maintains that, inasmuch as it challenges the ground concerning the necessity of experience of fulltime translation, the submission is unfounded for the reasons set out above. The Commission emphasizes finally, on the one hand, that the submission does not show how the concept of “peripheral” experience is erroneous and, on the other hand, that “peripheral” experience is inconsistent with specific experience, so that the argument again amounts to presenting under another form the arguments already put forward in support of the first submission. Finally, the Commission notes that there is no error or contradiction on its part in the fact that it recognized that the applicant had professional experience of five years and eight months, because that experience was not specific or relevant to the post and so cannot be taken into consideration for the purposes of Article 3 of the decision of 6 June 1973.
C — The submission based on the breach of the principle of non-discrimination
1. The applicant submits that he has been discriminated against in relation to his colleagues who cannot claim the same qualifications and professional experience and who nevertheless have, like him, been classified in Grade L/A 7. Such a situation is moreover prejudicial to his career prospects.
2. The Commission considers on the contrary that, since the applicant does not possess greater specific experience than his colleagues who have also been appointed to Grade L/A 7, he cannot claim that he has been discriminated against. Moreover, since access to the upper grade of the career bracket is not a right for officials but is to be granted at the discretion of the appointing authority, in the light of recruitment requirements, there can under no circumstances be any discrimination. The Commission concludes that in reality it is the applicant's appointment to Grade L/A 6 that would amount to discrimination against the other translators possessing an experience “with as little specific relevance to the post” as that of the applicant.
IV — Replies to the questions put by the Court
By a letter received at the Court on 7 June 1983 the Commission replied as follows to the questions which had been put to it:
First question: The Commission waited until March 1981 before informing each member of its staff of the contents of the decision of 6 June 1973 because it wished to make sure that those rules provided the stability and coherence required to ensure for members of the staff uniform treatment as regards their career prospects. It was only on the enlargement of the Community with the addition of a tenth Member State that it was considered appropriate to publicize that decision, and that was done in March 1981.
Second question: A copy of the decision accompanied by an annex summarizing the practice of the Grading Committee was sent by post to each member of the staff. Moreover, since March 1981 each successful candidate in a competition has also received a copy of those documents.
Third question: In drawing up the decision of 6 June 1973, the Commission did not intend to adopt a general provision giving effect to the Staff Regulations, within the meaning of Article 110 thereof; consequently, it considers that the provisions of that decision are strictly internal measures which may be “amended or repealed”.
Fourth question: The Commission recognizes that its power to depart from the general principle of recruitment in the starting grade of the starting career bracket is based on Article 31 of the Staff Regulations. However, it stresses that the decision of 6 June 1973 defines in the same way the experience required for appointment in career brackets other than the starting career bracket (Article 31 of the Staff Regulations) and the experience required for additional seniority within the official's grade (Article 32 of the Staff Regulations).
Fifth question: The Commission maintains that if Mr Michael had satisfied all the requirements laid down in the decision of 1973 he would have been classified in Grade L/A 6. Although neither Article 31 of the Staff Regulations nor Article 3 of the decision of 6 June 1973 compels the Commission to classify in the upper grade of the starting career bracket an official who satisfies the requirements laid down in that decision, the Commission has so far always followed such a practice.
Sixth question: The Commission stated that it did not yet possess the necessary information to reply to this question.
Seventh question: No official satisfying the requirements laid down in the decision of 1973 has been refused access to a higher grade than the starting grade.
Eighth question: The Commission maintains that there would be no obstacle to Mr Michael's appointment in Grade L/A 6 if he satisfied the requirements laid down in the decision of 1973.
Ninth question: The Commission acknowledges that at present there are no Greek translators in Grade L/A 6. However, it points out that that situation does not cause any problems.
V — Oral procedure
At the sitting on 15 September 1983 oral argument was presented by Mr Vandersanden, for the applicant, and by Mr Mihail, for the defendant.
The Advocate General delivered his opinion at the sitting on 20 October 1983.
Decision
1. By an application lodged at the Court Registry on 28 December 1982 Mr Michael, a translator at the Commission of the European Communities, brought an action for the annulment of the decision of 1 October 1982, whereby the Commission refused to alter the grade to which the applicant had been appointed on his recruitment to the Language Service, and for an order that the Commission should reclassify him in accordance with the provisions of the “Decision on the criteria applicable to grade and step classification upon recruitment” of 6 June 1973.
2. The applicant entered the service of the Commission on 16 April 1980 as a member of the temporary staff in Grade L/A 7, Step 3. He was employed as from 1 January 1981 as a probationary official, in the capacity of translator in the Greek Translation Division, in the same grade and step.
3. In March 1981 the Commission decided to inform all the members of its staff, and all successful candidates in new competitions after that date, of the abovementioned decision of 6 June 1973, which is intended essentially to allow the Commission to appoint in career brackets other than the starting career brackets, or to appoint in the upper grade of a career bracket, officials who can provide evidence of a certain degree of professional experience.
4. On 9 June 1981, having taken note of that decision, the applicant submitted to the Head of Personnel a request for his case to be reconsidered. He was informed by a memorandum of 3 November 1981 that the Grading Committee had decided, at its meeting on 15 October 1981, that it was not able to revise the opinion previously issued. The applicant then sent a letter dated 4 February 1982 to the Director-General for Personnel and Administration, whom he requested to reconsider his grading on the basis of the Commission's decision of 6 June 1973.
5. By letter of 17 May 1982 the Director-General confirmed the applicant's initial classification in Grade L/A 7.
6. On 28 June 1982 the applicant lodged a complaint, pursuant to Article 90 (2) of the Staff Regulations, against the decision of 27 May 1982.
7. By a decision dated 1 October 1982, the appointing authority rejected that complaint on the ground that, under the terms of the decision of 6 June 1973 and Annex II to the notice publishing the decision, only experience of translation in the strict sense may be regarded as “relevant” to the work of general translators and that the applicant could not show that he had at least five years of such experience.
8. That is the decision against which the applicant brought the present action.
The claim for annulment of the contested decision
9. In support of this claim the applicant submits that the contested decision is contrary to the decision of 6 June 1973 and was adopted in breach of the principle of nondiscrimination.
The submission based on the alleged breach of the decision of 6 June 1973
10. In support of this submission the applicant claims, in the first place, that the decision of 6 June 1973 is binding on the appointing authority and, secondly, that he satisfies the conditions concerning previous experience laid down in that decision.
The first branch of the submission
11. The applicant claims that the decision of 6 June 1973 is intended to ensure that uniform rules concerning grading are applied to newly recruited officials and that those officials enjoy identical conditions of recruitment and career prospects. It is therefore binding on the appointing authority and its provisions, which are of mandatory legal effect, are to be applied automatically and objectively.
12. The Commission contends, on the other hand, that the applicant could have founded his application solely on the alleged breach of Article 31 of the Staff Regulations, inasmuch as the provisions of the decision of 6 June 1973 do not create for Commission officials any right on which they might usefully rely. According to the Commission, those provisions merely state that the appointing authority may make an appointment to the upper grade of a career bracket exceptionally and in order to take into account recruitment requirements. Thus the Commission considers that it retains an “absolute discretion”.
13. The Commission's decision of 6 June 1973 is not simply a list of the criteria governing classification in grade or in step intended exclusively to facilitate the decisions of the appointing authority. According to the preamble thereto, it is also intended to “ensure that identical conditions of recruitment and career prospects shall be enjoyed by ail officials in the same category or the same service”. Moreover, the Commission considered it necessary in March 1981 to bring that decision officially to the notice of all the members of its staff in the form of individual notifications.
14. It follows that, even though the decision in question may not be regarded as a general implementing measure within the meaning of Article 110 of the Staff Regulations, it constitutes an internal directive. As the Court stated in its judgment of 30 January 1974 (Case 148/73, Louwage v Commission, [1974] ECR 81), such an internal directive must be regarded as a rule of conduct, indicating the practice to be followed, which the administration imposes on itself and from which it may not depart without specifying the reasons which have led it to do so, since otherwise the principle of equality of treatment would be infringed.
15. Since, in reply to the questions put by the Court, the Commission has acknowledged that it intended to abide strictly by the provisions of the decision of 6 June 1973 and to accord the benefit of the provisions to all officials satisfying the conditions set out therein, the Court must conclude, in the first place, that the applicant could lawfully submit an application for regrading based solely on the provisions of that decision and, secondly, that he is entitled to rely on any breach of those provisions.
16. It must, however, be borne in mind that under no circumstances can such internal measures adopted by the Community institutions legally establish rules which derogate from the provisions of the Staff Regulations.
The second branch of the submission
17. The applicant claims secondly that he can provide evidence of professional experience, within the meaning of the internal directive, of 11 years and six months and that consequently he easily satisfies the conditions laid down in Article 3.
18. The Commission, on the other hand, contends that only experience of translation in the strict sense may be regarded as “relevant” and may be taken into account in calculating the length of a translator's previous experience in order to enable him to benefit from the provisions of Article 3 of the internal directive.
19. The rules on grade and step classification set out in Articles 31 and 32 of the Staff Regulations lay down the principle that candidates appointed officials in Category A or in the Language Service are recruited in the starting grade of their category or service and classified in the first step of their grade. However, those two articles allow the appointing authority to make exceptions to those rules, taking account of the experience of the persons concerned, provided that it is sufficiently “specific” in relation to the vacant post.
20. The principle that all candidates selected to be probationary officials shall be appointed in the starting grade of the starting career bracket of their category or service is further confirmed in Article 1 of the decision of 6 June 1973. However, Article 3 of that decision, which concerns appointment in the upper grade of a career bracket, provides that “by way of derogation from Article 1, the appointing authority may, exceptionally and in order to meet recruitment requirements, appoint a candidate to the upper grade in the starting or intermediate career bracket, if the candidate gives evidence of professional experience, within the meaning of Article 2, of at least ... five years for Grade L/A 6”.
21. Article 2 of the decision of 6 June 1973 gives the following general definition of professional experience: “professional experience with regard to the post to be filled shall be assessed on the basis of all the activities in which the candidate has engaged before recruitment”.
22. Viewed in the light of Articles 31 and 32 of the Staff Regulations, the indications given by the decision of 6 June 1973 can apply only to experience which is specifically related to the post to be filled. The Commission is therefore right in stating in Annex II to the notice publishing the decision that in practice credit is not given in Career Bracket L/A 7 - L/A 6 (Translator) except for “relevant” experience and on the further condition that it is of a level equivalent to Category A work, that is to say university level.
23. On the other hand, the provisions of the Staff Regulations would be infringed by any practice which consisted in giving credit for experience which was not specifically related to the post to be filled, as seems to be implied by the words “[Experience] as translator, economist, lawyer, etc.” in paragraph 3 (c) of Annex II. It seems moreover, as the Commission acknowledged at the hearing, that certain provisions of the annex to the decision are ambiguous and are likely to mislead the officials concerned as to their rights regarding reclassification.
24. Since in this case the post in question is a general translator's post which entails the translation of texts on diverse subjects, the Commission committed no manifest error of assessment and did not base its decision on subjective grounds in finding that only previous experience of translation in the strict sense might be considered sufficiently specific in relation to the duties in question.
25. It follows that the first submission must be dismissed.
The submission based on the alleged breach of the principle of non-discrimination
26. The applicant claims that he has been discriminated against in relation to his colleagues who cannot lay claim to the same qualifications and professional experience and who have nevertheless been classified, like him, in Grade L/A7.
27. That submission must also be dismissed. As the Commission maintained at the hearing, without being contradicted, the practice of taking into account only experience of translation in the strict sense for classification in the higher grade in a post of general translator in the Language Service represents an established practice of the Grading Committee and the appointing authority. Therefore the Commission was entitled to consider that, since the applicant did not have greater specific professional experience than his colleagues, he had no grounds for complaining of any discrimination against him.
28. Therefore the claim for the annulment of the disputed decision must be dismissed, as must, in consequence and in any event, the claim for reclassification. It follows that the application must be dismissed.
Costs
29. Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs.
30. The applicant has failed in his submissions.
31. However, in view of the Commission's attitude in publishing a decision containing certain provisions lacking in clarity which could have misled the officials concerned as regards the rights to which they were entitled, it is appropriate, pursuant to the second subparagraph of Article 69 (3) of the Rules of Procedure, to order the defendant to pay all the costs.
On those grounds, THE COURT (Third Chamber) hereby:
1 Dismisses the application;
2 Orders the defendant to pay all the costs.