Court of Justice of the European Communities (including Court of First Instance Decisions)

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Officials - Recruitment - Promotion - Classification in step - Separate rules governing classification - Respective aims - Change of category or service following a competition - Applicable rules - Rules on promotion - Departure from such rules - Conditions
( Staff Regulations, Art . 32, second paragraph, and Art . 46 )

In view of the respective aims of the second paragraph of Article 32 and Article 46 of the Staff Regulations, the classification in step of an official moving from one category to another must be based on the principles laid down in Article 46 and not on those laid down in the second paragraph of Article 32 . Article 32 is intended in particular to enable the appointing authority to take into account, albeit within rather strict limits, training and professional experience acquired before a Community official takes up his duties, whereas the purpose of Article 46 is to ensure the greatest possible continuity regarding his seniority and salary as his career develops, even when he moves from one category or service to another on the basis of a competition .
It is, however, justifiable to depart from the application of Article 46 when the change of category or service occurs shortly after the official' s entry into the service of the Communities and when the application of that article on appointment to the new post would not allow account to be taken of the training and the specific professional experience acquired prior to recruitment .

In Case 47/87
Engelina Lucas, an official of the Commission of the European Communities, represented by Victor Biel, of the Luxembourg Bar, with an address for service in Luxembourg at Mr Biel' s Chambers, 18 A rue des Glacis,
applicant,
v
Commission of the European Communities, represented by its Legal Adviser Peter Kalbe, acting as Agent, with an address for service in Luxembourg at the office of G . Kremlis, a member of its Legal Department, Jean Monnet Building, Kirchberg,
defendant,
APPLICATION for the annulment of the Commission' s tacit refusal to review the classification in step resulting from the decision of the Commission of 7 April 1986 appointing the applicant as a translator in Grade LA 7, Step 1,
THE COURT ( Second Chamber )
composed of : O . Due, President of Chamber, K . Bahlmann and T . F . O' Higgins, Judges,
Advocate General : Sir Gordon Slynn
Registrar : J . A . Pompe, Deputy Registrar
having regard to the Report for the Hearing and further to the hearing on 17 November 1987,
after hearing the Opinion of the Advocate General delivered at the sitting on 9 March 1988,
gives the following
Judgment

1 By an application lodged at the Court Registry on 17 February 1987, Engelina Lucas, an official of the Commission of the European Communities, brought an action for the annulment of the Commission' s tacit refusal to review her classification in step pursuant to the decision of the Commission of 7 April 1986 appointing the applicant as a translator .
2 The applicant was originally recruited in 1968 in Grade C 3 . She was appointed to Grade B 5 in 1977 after successfully taking part in an open competition . She was later promoted to Grade B 4 in 1980 and then to Grade B 3 in 1984 .
3 The applicant was awarded a "certificat pratique de langue française ( 1er degré )" by the University of Paris in 1966, and obtained a university diploma in administration in 1983 .
4 As a successful candidate in an open competition for translators to fill posts in Career Bracket LA 7 and LA 6, to which she had been admitted by virtue of her 1983 diploma, the applicant was appointed by the abovementioned decision as a translator in Grade LA 7, Step 1, with effect from 1 April 1986 . The preamble to the decision shows that it was adopted pursuant ( inter alia ) to two internal decisions of the Commission, under which the classification in step of an official appointed to a post in a higher category is governed by Article 46 of the Staff Regulations, on the promotion of officials .
5 The applicant took the view that she had not been promoted within the meaning of Article 46 of the Staff Regulations but had been recruited under Article 32 to a post of translator; accordingly, on 18 July 1986 she lodged a complaint under Article 90 ( 2 ) against the decision appointing her, in which she sought to be reclassified in Grade LA 7, Step 3, pursuant to the second paragraph of Article 32, in view of her diplomas and previous experience . That complaint was tacitly rejected, the Commission having failed to reply before the expiry of the period prescribed by the Staff Regulations .
6 In her action before the Court, the applicant states that for many years she did work equivalent to some of the activities of officials in the Language Service and, at least from 1978 to 1984, carried out duties appropriate to Category A . The applicant takes the view that she should therefore have received 48 months additional seniority in grade LA 7 and should have been classified in Step 3 of that grade .
7 The Commission objects that the application is inadmissible since even on the assumption that it was wrong to base itself on Article 46 when classifying the applicant in step, the application to her case of the criteria on classification in step on recruitment adopted by the Commission' s decision implementing the second paragraph of Article 32 would necessarily have led to the applicant' s being classified in Step 1 of Grade LA 7 . That being so, the applicant has no material interest in bringing proceedings .
8 As to the merits, the Commission contends that it was correct to apply Article 46 to the classification of the applicant . Furthermore, the facts of the case do not substantiate the allegation that the application of the second paragraph of Article 32 would have enabled the applicant to rely on professional experience justifying classification in Grade LA 7, Step 3, because the casual and ancillary translation duties performed by the applicant before she was appointed to Grade LA 7 are not comparable with those of an experienced professional translator .
9 Reference is made to the Report for the Hearing for a fuller account of the facts of the case and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .
10 The merits of the application should be considered before any finding is made as to its admissibility .
11 As the Court has already held, in its judgment of 15 January 1985 in Case 226/83 Samara v Commission (( 1985 )) ECR 189, the Staff Regulations do not contain any provisions which govern the classification in step of an official appointed to another post following an open competition .
12 Accordingly, the Court held in its judgment of 29 January 1985 in Case 273/83 ( Michel v Commission (( 1985 )) ECR 347, at p . 354 ) that the relevant provisions of the Staff Regulations must be interpreted as meaning that the classification in step of an official moving from one category to another must be based on the principles laid down in Article 46 and not on those laid down in the second paragraph of Article 32, particularly in view of the purpose of the latter provision . Article 32 is intended in particular to leave open the possibility for the appointing authority to take into account, albeit within rather strict limits, training and professional experience acquired by a candidate before he takes up his duties as a Community official .
13 On the other hand, the purpose of Article 46 is to ensure the greatest possible continuity regarding an official' s seniority and salary as his career develops, even when he moves from one category or service to another - which, in accordance with Article 45 ( 2 ), can occur only on the basis of a competition .
14 It is true that the Court has departed from the application of Article 46 in cases where that article would not, on the appointment of an official to a new post shortly after his entry into the service of the Communities, have allowed account to be taken of the training and the specific professional experience acquired by that person before he was recruited ( see judgment of 15 January 1985, cited above, and the judgment of 20 June 1985 in Case 138/84 Spachis v Commission (( 1985 )) ECR 1939 ).
15 However, the applicant' s circumstances do not admit of such a departure . In the first place, she has not demonstrated that she had the training and specific professional experience of a translator prior to her entry into the service . Furthermore, although she was initially recruited in 1968 she was not appointed to a post as a translator until 1986 .
16 It follows from the foregoing that the application must be dismissed as unfounded, and it is not necessary to consider the objection of inadmissibility which the Commission bases on the outcome of any application of the second paragraph of Article 32 of the Staff Regulations .

Costs
17 Under Article 69 ( 2 ) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs . However, under Article 70 of those rules, institutions are to bear their own costs in proceedings brought by officials of the Communities .

On those grounds,
THE COURT ( Second Chamber )
hereby :
( 1 ) Dismisses the application;
( 2 ) Order the parties to pay their own costs .