1 IN TWO APPLICATIONS LODGED AT THE COURT REGISTRY ON 13 APRIL AND 13 OCTOBER 1982 , CHARLES LUX , AN OFFICIAL OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , BROUGHT TWO ACTIONS SEEKING THE ANNULMENT OF THE DECISION ADOPTED BY THE PRESIDENT OF THE COURT OF AUDITORS ON 20 JANUARY 1982 APPOINTING HIM TO THE POST OF PRINCIPAL ADMINISTRATOR WITH CLASSIFICATION IN GRADE A 5 , STEP 3 , AS A RESULT OF INTER-INSTITUTIONAL COMPETITION NO CC/A/3/80 OF 21 APRIL 1980 . THE APPLICANT FURTHER CLAIMS THAT THE COURT SHOULD DECLARE THAT HE SHOULD BE CLASSIFIED IN GRADE A 4 .
BACKGROUND TO THE DISPUTE
2 AT THE BEGINNING OF 1980 THE COURT OF AUDITORS , AN INSTITUTION SET UP IN 1977 , NEEDED TO INCREASE ITS STAFF AND , IN PARTICULAR , TO FILL POSTS IN HIGHER GRADES . FOR THAT PURPOSE IT ADOPTED , ON 21 FEBRUARY 1980 , DOCUMENT NO M 8/80 REV . 1 , ENTITLED ' ' DECISION ON THE CRITERIA FOR THE CLASSIFICATION AND APPOINTMENT OF STAFF . ' ' ARTICLE 1 OF THAT DECISION PROVIDES :
' ' IN GENERAL , THE APPOINTING AUTHORITY SHALL APPOINT A SUCCESSFUL CANDIDATE IN A COMPETITION TO THE STARTING GRADE OF THE BASIC CAREER BRACKET OF HIS CATEGORY OR SERVICE , ' '
AND ARTICLE 2 PROVIDES :
' ' BY WAY OF DEROGATION FROM ARTICLE 1 , THE APPOINTING AUTHORITY MAY APPOINT A CANDIDATE TO A GRADE OTHER THAN THE STARTING GRADE OF THE STARTING CAREER BRACKET OF HIS CATEGORY OR SERVICE IF HE GIVES EVIDENCE OF PROFESSIONAL EXPERIENCE OF AT LEAST . . . 10 YEARS FOR GRADE A 4 . . . ' '
3 IN ADDITION THE COURT OF AUDITORS DECIDED IN DOCUMENT NO MC 6/80 REV . 1 , ADOPTED IN RESTRICTED SESSION ON 12 JUNE 1980 , THAT ' ' THE CRITERIA FOR CLASSIFICATION IN GRADE AND STEP , LAID DOWN BY THE COURT AND SET OUT IN DOCUMENT NO M 8/80 REV . 1 , SHALL REMAIN IN FORCE UNTIL THE APPOINTMENTS RESULTING FROM THE INTER-INSTITUTIONAL COMPETITIONS AT PRESENT BEING HELD HAVE BEEN MADE . AS SOON AS THOSE PROCEDURES ARE COMPLETED ( ON A DATE TO BE FIXED BY THE APPOINTING AUTHORITY ), THE CRITERIA SET OUT IN DOCUMENT NO M 8/80 REV . 1 SHALL BE AMENDED OR SUPPLEMENTED BY THE FOLLOWING PROVISIONS , WHICH SHALL HOWEVER TAKE IMMEDIATE EFFECT FOR TEMPORARY STAFF . . . . AS REGARDS BOTH TEMPORARY AND PERMANENT STAFF , APPOINTMENTS DIRECT TO A 4 AND TO A 6 WILL BE MADE IN EXCEPTIONAL CIRCUMSTANCES , TO BE JUSTIFIED IN EACH INDIVIDUAL CASE BY REFERENCE TO THE DUTIES TO BE CARRIED OUT . . . . ' '
4 HAVING REGARD TO THE TWO DECISIONS OF 21 FEBRUARY 1980 AND 12 JUNE 1980 AND CONSIDERING THAT IT WAS NECESSARY TO LAY DOWN IDENTICAL CRITERIA FOR THE CLASSIFICATION OF PERSONS APPOINTED ON THE BASIS OF COMPETITIONS , THE COURT OF AUDITORS ADOPTED ON 3 DECEMBER 1981 DECISION NO 81-5 ON THE CRITERIA APPLICABLE TO THE GRADE AND STEP CLASSIFICATION OF THE STAFF OF THE COURT . ARTICLE 3 OF THAT DECISION PROVIDES THAT ' ' THE APPOINTING AUTHORITY MAY , IN EXCEPTIONAL CIRCUMSTANCES JUSTIFIED ON THE BASIS OF THE POST TO BE FILLED , MAKE APPOINTMENTS TO THE HIGHER GRADE OF STARTING OR INTERMEDIARY CAREER BRACKETS , PROVIDED THAT THE CANDIDATE GIVES EVIDENCE OF PROFESSIONAL EXPERIENCE OF AT LEAST . . . 10 YEARS FOR GRADE A 4 . . . ' ' .
5 THE COURT OF AUDITORS EXPLAINS THAT THOSE DECISIONS REFLECT SUCCESSIVE STAGES IN ITS RECRUITMENT POLICY . IT OBSERVES THAT ON ITS CREATION IT HAD TO CONTEND WITH THE PROBLEM OF BUILDING UP ITS STAFF AND THAT IT CHOSE FIRST TO RECRUIT SENIOR STAFF BY ATTRACTING PERSONS OF CONSIDERABLE ABILITY , WHOM IT WISHED TO APPOINT TO THE HIGHER GRADES OF THE CAREER BRACKETS . THAT FIRST STAGE , WHICH INVOLVED SOLELY INTERNAL COMPETITIONS WITHIN THE COURT OF AUDITORS , WAS COMPLETED ON 1 APRIL 1980 . BY CONTRAST , THE OBJECTIVES IN THE SECOND STAGE OF APPOINTMENTS WAS , ACCORDING TO THE COURT OF AUDITORS , ESSENTIALLY TO SEEK YOUNGER STAFF TO BE APPOINTED TO THE STARTING GRADES OF CAREER BRACKETS AND , AT THE SAME TIME , TO GIVE A SECOND CHANCE TO CANDIDATES WHO HAD BEEN UNSUCCESSFUL DURING THE FIRST STAGE OF APPOINTMENTS . THE SECOND STAGE INVOLVED HOLDING COMPETITIONS WITHIN THE INSTITUTIONS OF THE EUROPEAN COMMUNITIES . THE COURT OF AUDITORS OBSERVES THAT AMONG THOSE INTER-INSTITUTIONAL COMPETITIONS WAS COMPETITION NO CC/A/3/80 , IN RESPECT OF WHICH THE NOTICE OF COMPETITION WAS PUBLISHED ON 21 APRIL 1980 AND THE SELECTION BOARD ' S REPORT WAS RECEIVED BY THE APPOINTING AUTHORITY ON 12 JUNE 1980 .
6 IT APPEARS THAT THE APPLICANT , AFTER BEING SUCCESSFUL IN COMPETITION NO CC/A/3/80 , WAS APPOINTED ON 9 SEPTEMBER 1980 TO A POST OF PRINCIPAL ADMINISTRATOR AND WAS CLASSIFIED IN GRADE A 5 , STEP 2 . THAT APPOINTMENT WAS BASED INTER ALIA ON ARTICLE 46 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES .
7 IN REPLY TO A COMPLAINT SUBMITTED BY THE APPLICANT ON 27 AUGUST 1981 , THE PRESIDENT OF THE COURT OF AUDITORS , ON 18 DECEMBER 1981 , STATED THAT THE APPLICANT ' S APPOINTMENT OUGHT NOT TO HAVE BEEN BASED ON ARTICLE 46 OF THE STAFF REGULATIONS AND DECIDED THAT THE INDIVIDUAL DECISION OF 9 SEPTEMBER 1980 SHOULD BE REVISED AND TAKEN ' ' ON THE BASIS OF THE DECISION OF THE COURT OF AUDITORS OF 21 FEBRUARY 1980 ' ' .
8 ACCORDINGLY THE PRESIDENT OF THE COURT OF AUDITORS , ACTING IN HIS CAPACITY AS THE APPOINTING AUTHORITY , ADOPTED THE INDIVIDUAL DECISION OF 20 JANUARY 1982 ; BY THAT DECISION WHICH EXPRESSLY REFERRED TO THE DECISION OF 21 FEBRUARY 1980 AND REVOKED THE DECISION OF 9 SEPTEMBER 1980 , THE APPLICANT WAS APPOINTED TO GRADE A 5 , STEP 3 .
9 ON 16 MARCH 1982 THE APPLICANT SUBMITTED A COMPLAINT , PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , AGAINST THE DECISION OF 20 JANUARY 1982 , CLAIMING THAT HIS NEW CLASSIFICATION WAS NOT IN CONFORMITY WITH THE DECISION OF 21 FEBRUARY 1980 , THAT THE DECISION WAS THUS CONTRARY TO THE PRINCIPLES OF EQUALITY AND OBJECTIVITY AND THAT HE SHOULD BE APPOINTED TO GRADE A 4 . THE APPLICANT ALSO SUBMITTED THE FIRST OF THE TWO APPLICATIONS TO THE COURT OF JUSTICE ON 13 APRIL 1982 , AS A PRECAUTIONARY MEASURE , IN CASE IT SHOULD BE CONSIDERED THAT , INSTEAD OF SUBMITTING A COMPLAINT , HE OUGHT TO HAVE BROUGHT AN ACTION DIRECTLY AGAINST THE DECISION OF 20 JANUARY 1982 .
10 THE APPLICANT RECEIVED NO REPLY FROM THE COURT OF AUDITORS TO HIS COMPLAINT OF 16 MARCH 1982 , AND , ON 13 OCTOBER 1982 , MADE A SECOND APPLICATION TO THE COURT OF JUSTICE CHALLENGING THE IMPLIED DECISION REJECTING THAT COMPLAINT .
SUBSTANCE
11 THE APPLICANT BASES HIS CLAIM TO A HIGHER CLASSIFICATION UPON ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS OF OFFICIALS , WHICH PROVIDES THAT ' ' IDENTICAL CONDITIONS OF RECRUITMENT AND SERVICE CAREER SHALL APPLY TO ALL OFFICIALS BELONGING TO THE SAME CATEGORY OR THE SAME SERVICE ' ' . HE STATES THAT THE DEFENDANT , IN ACCORDANCE WITH ITS DECISION OF 21 FEBRUARY 1980 CONCERNING INTERNAL COMPETITIONS , AS CONFIRMED BY THE DECISION OF 12 JUNE 1980 AS REGARDS THE INTER-INSTITUTIONAL COMPETITIONS THEN IN PROGRESS , MADE APPOINTMENTS TO A GRADE HIGHER THAN THE STARTING GRADE .
12 THE COURT OF AUDITORS OBSERVES THAT THE CONTESTED APPOINTMENT WAS MADE IN THE SECOND STAGE OF RECRUITMENT , IN WHICH ALL STAFF , SUBJECT TO CERTAIN EXCEPTIONS , WERE APPOINTED TO THE STARTING GRADE OF THE CAREER BRACKET .
13 IN THAT REGARD IT SHOULD BE POINTED OUT THAT THE INTERNAL DECISION OF THE COURT OF AUDITORS DATED 12 JUNE 1980 CLEARLY STATES THAT THE CRITERIA FOR GRADE AND STEP CLASSIFICATION LAID DOWN BY THE COURT OF AUDITORS IN THE INTERNAL DECISION OF 21 FEBRUARY 1980 ARE TO REMAIN IN FORCE UNTIL THE APPOINTMENTS RESULTING FROM THE INTER-INSTITUTIONAL COMPETITIONS CURRENTLY BEING HELD HAVE BEEN MADE .
14 IT APPEARS FROM THE DOCUMENTS PUT BEFORE THE COURT THAT THE APPOINTMENT RESULTING FROM INTER-INSTITUTIONAL COMPETITION NO CC/A/3/80 HAD NOT YET BEEN MADE AT THE TIME OF THE DECISION OF 12 JUNE 1980 , SINCE IT WAS NOT UNTIL THAT DATE THAT THE REPORT OF THE SELECTION BOARD WAS RECEIVED BY THE APPOINTING AUTHORITY . THAT COMPETITION MUST CONSEQUENTLY BE REGARDED AS ' ' BEING HELD ' ' WITHIN THE MEANING OF THAT DECISION . MOREOVER , THE LIBERAL RECRUITMENT POLICY RESULTING FROM THE DECISION OF THE COURT OF AUDITORS DATED 21 FEBRUARY 1980 AND AMENDED IN PART BY THE DECISION OF 12 JUNE 1980 WAS NOT FINALLY ENDED UNTIL THE ADOPTION OF THE DECISION OF 3 DECEMBER 1981 .
15 UNDER THOSE CIRCUMSTANCES , THE COURT OF AUDITORS HAS NO GROUNDS FOR STATING THAT THE APPOINTING AUTHORITY DECIDED , PURSUANT TO THE DECISION OF 12 JUNE 1980 , THAT ALL THE APPOINTMENTS HAD BEEN MADE BY 1 AUGUST 1980 AND THAT THEREFORE THE APPLICANT , WHO WAS APPOINTED ON 9 SEPTEMBER 1980 , HAD TO BE APPOINTED TO THE STARTING GRADE , IN THE ABSENCE OF EXCEPTIONAL CIRCUMSTANCES . ON THE CONTRARY , ACCORDING TO THE CLEAR PROVISIONS OF THE DECISION OF 12 JUNE 1980 , THE RECRUITMENT PROCEDURES COULD NOT BE FOUND TO HAVE BEEN COMPLETED UNTIL AFTER THE APPOINTMENTS RESULTING FROM THE INTER-INSTITUTIONAL COMPETITIONS HAD BEEN MADE .
16 IT FOLLOWS THAT THE CRITERIA FOR GRADE AND STEP CLASSIFICATION LAID DOWN IN THE DECISION OF THE COURT OF AUDITORS OF 21 FEBRUARY 1980 WERE STILL IN FORCE AT THE TIME OF THE APPOINTMENT OF THE APPLICANT , A SUCCESSFUL CANDIDATE IN COMPETITION NO CC/A/3/80 .
17 AS REGARDS THE APPLICATION OF ARTICLE 2 OF THE DECISION OF 21 FEBRUARY 1980 TO THE APPLICANT ' S APPOINTMENT , THE COURT OF AUDITORS CONTENDS THAT IT WOULD RESULT IN A SUCCESSFUL CANDIDATE ' S BEING GRADED SOLELY ON THE BASIS OF HIS PROFESSIONAL EXPERIENCE AND NOT ON THE BASIS OF THE POST TO BE FILLED . IN ITS VIEW , APPOINTMENT TO A HIGHER GRADE IS MERELY AN OPTION WHICH THE APPOINTING AUTHORITY MAY OR MAY NOT EXERCISE AND CANNOT BE AUTOMATIC WITHOUT INFRINGING ARTICLES 31 AND 32 OF THE STAFF REGULATIONS .
18 IT SHOULD BE POINTED OUT IN THAT REGARD THAT ARTICLE 31 ( 2 ) ( B ) OF THE STAFF REGULATIONS AUTHORIZES THE APPOINTING AUTHORITY TO MAKE EXCEPTIONS WITHIN CERTAIN LIMITS TO THE GENERAL RULE THAT CANDIDATES SHOULD BE APPOINTED TO THE STARTING GRADE . SUCH AN EXCEPTION , JUSTIFIED BY SPECIAL NEEDS , WAS LAID DOWN BY THE DECISION OF 21 FEBRUARY 1980 .
19 WHERE AN EXCEPTION TO THE GENERAL RULE GOVERNING APPOINTMENTS IS INTRODUCED IN THE FORM OF A GENERAL DECISION ADOPTED WITHIN AN INSTITUTION , THE PRINCIPLE THAT THERE SHOULD BE NO DISCRIMINATION BETWEEN OFFICIALS IN ANY ONE CATEGORY AT THE TIME OF THEIR RECRUITMENT , LAID DOWN BY ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS , WOULD BE DEPRIVED OF ANY LEGAL SIGNIFICANCE IF IN SUCH A CASE THE APPOINTING AUTHORITY STILL HAD THE SAME DISCRETION AS IS CONFERRED UPON IT BY ARTICLE 31 OF THE STAFF REGULATIONS .
20 THE COURT HAS HELD ON NUMEROUS OCCASIONS THAT ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS IS OF FUNDAMENTAL IMPORTANCE IN THE LAW RELATING TO THE EMPLOYMENT OF COMMUNITY OFFICIALS . THUS , AS THE COURT HELD IN ITS JUDGMENT OF 20 JANUARY 1974 IN CASE 148/73 ( LOUWAGE V COMMISSION , ( 1974 ) ECR 81 ), ALTHOUGH AN INTERNAL DIRECTIVE DOES NOT HAVE THE CHARACTER OF A RULE OF LAW WHICH THE ADMINISTRATION IS BOUND TO OBSERVE , IT NEVERTHELESS LAYS DOWN A RULE OF CONDUCT INDICATING THE PRACTICE TO BE FOLLOWED , FROM WHICH THE ADMINISTRATION MAY NOT DEPART WITHOUT GIVING THE REASONS WHICH HAVE LED IT TO DO SO , SINCE OTHERWISE THE PRINCIPLE OF EQUALITY OF TREATMENT WOULD BE INFRINGED .
21 IN THIS CASE , THE CRITERIA LAID DOWN IN THE DECISION OF 21 FEBRUARY 1980 FOR APPOINTMENT TO A GRADE HIGHER THAN THE STARTING GRADE ARE DRAFTED IN SUCH A WAY THAT , IF THEY ARE FULFILLED , THE APPOINTING AUTHORITY MAY MAKE THE APPOINTMENT BUT CANNOT LAY DOWN ADDITIONAL PRE-CONDITIONS . THAT BEING SO , THE COURT OF AUDITORS WAS NOT ENTITLED IN THE APPLICANT ' S CASE TO DEPART FROM THE ADMINISTRATIVE PRACTICE LAID DOWN BY ARTICLE 2 OF THE DECISION OF 21 FEBRUARY 1980 WITHOUT GIVING THE REASONS FOR DOING SO .
22 IT SHOULD ALSO BE POINTED OUT THAT THE COURT OF AUDITORS DID NOT GIVE ANY REASONS WHICH COULD JUSTIFY ITS REFUSAL TO APPLY ARTICLE 2 OF THE DECISION OF 21 FEBRUARY 1980 TO THE APPLICANT . AS FAR AS PROFESSIONAL EXPERIENCE IS CONCERNED , THE APPLICANT ' S CLAIM THAT HE HAS AT LEAST 10 YEARS ' PROFESSIONAL EXPERIENCE HAS NOT BEEN REFUTED BY THE COURT OF AUDITORS . AS TO THE QUESTION WHETHER THE BUDGET PERMITTED SUCH AN APPOINTMENT , THE COURT OF AUDITORS ADMITS THAT , AT THE TIME AT WHICH THE APPLICANT SAT THE COMPETITION WHICH LED TO HIS APPOINTMENT , IT STILL HAD TWO VACANT BUDGETARY POSTS IN GRADE A 4 .
23 CONSEQUENTLY , THE DEFENDANT ' S DECISION OF 20 JANUARY 1982 MUST BE ANNULLED AND THE CASE MUST BE REMITTED TO THE COURT OF AUDITORS FOR IT TO REVISE THE APPLICANT ' S GRADING IN ACCORDANCE WITH THE CRITERIA LAID DOWN IN THIS JUDGMENT .
COSTS
24 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE COURT OF AUDITORS HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .
ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . ANNULS THE DECISION OF THE PRESIDENT OF THE COURT OF AUDITORS DATED 20 JANUARY 1982 ;
2.REMITS THE CASE TO THE COURT OF AUDITORS FOR A FRESH DECISION ;
3.ORDERS THE COURT OF AUDITORS TO PAY THE WHOLE OF THE COSTS .
