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

JUDGMENT OF THE COURT (Fifth Chamber)

11 January 2001 (1)

(Appeals - Officials - Request for review of classification in grade - Action - Expiry of time-limits - New fact - Inequality of treatment)

In Case C-389/98 P,

Hans Gevaert, an official of the Commission of the European Communities, residing in Merelbeke (Belgium), represented by N. Lhoëst, Avocat, with an address for service in Luxembourg,

appellant,

APPEAL against the order of the Court of First Instance of the European Communities (First Chamber) of 19 August 1998 in Case T-160/97 Gevaert v Commission [1998] ECR-SC I-A-465 and II-1363, seeking to have that order set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by G. Valsesia, C. Berardis-Kayser and F. Duvieusart-Clotuche, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of: D.A.O. Edward, acting as President of the Fifth Chamber, P. Jann and L. Sevón (Rapporteur), Judges,

Advocate General: P.Léger,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 15 December 1999,

after hearing the Opinion of the Advocate General at the sitting on 28 March 2000,

gives the following

Judgment

1. By application lodged at the Registry of the Court of Justice on 2 November 1998, Mr Gevaert brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice and the corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice against the order of the Court of First Instance of 19 August 1998 in Case T-160/97 Gevaert v Commission [1998] ECR-SC I-A-465 and II-1363 (hereinafter 'the contested order), in so far as it dismissed as inadmissible his action for annulment of the decision of the Commission of the European Communities of 26 August 1996 rejecting his request for a review of his classification in grade.

   Legal and factual background

2. Article 5(3) of the Staff Regulations of Officials of the European Communities (hereinafter 'the Staff Regulations) provides:

   'Identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service.

3. Article 31 of the Staff Regulations provides as follows:

   '1. Candidates thus selected shall be appointed as follows:

   - officials in Category A or the Language Service:

   to the starting grade of their category or service;

   - officials in other categories:

   to the starting grade for the post for which they have been recruited.

   2. However, the appointing authority may make exceptions to the foregoing provisions within the following limits:

   (a) in respect of Grades A 1, A 2, A 3 and LA 3,

   - up to half the appointments to posts becoming vacant;

   - up to two-thirds of the appointments to newly created posts;

   (b) in respect of other grades,

   - up to one-third of the appointments to posts becoming vacant;

   - up to half the appointments to newly created posts.

   Save in respect of Grade LA 3, this provision shall be applied by groups of six posts to be filled in each grade for the purpose of this provision.

4. Following an action by an official, the Court of First Instance annulled the classification decision concerning him (judgment of 5 October 1995 in Case T-17/95 Alexopoulou v Commission [1995] ECR-SC I-A-227 and II-683).

5. That official had been classified in the basic grade of her career bracket pursuant to an internal decision of 1 September 1983 on the criteria applicable to appointment in grade and classification in step on recruitment (hereinafter 'the decision of 1 September 1983), whereby the Commission had waived the discretion conferred upon it by Article 31(2) of the Staff Regulations. The Court of First Instance considered, however, in regard to that decision that, while the discretion conferred upon the appointing authority by Article 31(2) of the Staff Regulations may, according to the case-law, be governed by internal decisions such as the decision of 1 September 1983, the Commission cannot, simply by means of a decision, restrict or limit the legal effects of provisions of the Staff Regulations. It held that the Commission could not waive altogether the discretion conferred upon it by Article 31(2) of the Staff Regulations by debarring itself absolutely from appointing a newly-recruited officialto a grade other than the starting grade in the career bracket and that, accordingly, the decision of 1 September 1983 was contrary to the Staff Regulations.

6. The Court of First Instance stressed, in particular, on that occasion that, in order to prevent Article 31(2) of the Staff Regulations from being deprived of any legal significance, the appointing authority was required in special circumstances, such as where a candidate had exceptional qualifications, specifically to assess the possible application of that provision. Such an obligation arose in particular where the specific needs of the department required the recruitment of a specially qualified official and therefore justified resort to Article 31(2) of the Staff Regulations or where the person recruited possessed exceptional qualifications and requested the application of those provisions. The Court of First Instance stated, however, that in the light of the great diversity of the types of practical experience evidenced by the candidates applying for posts as officials, the appointing authority enjoyed a wide discretion within the framework of Article 31 and the second paragraph of Article 32 of the Staff Regulations and the internal decisions implementing those provisions when assessing the previous experience of a candidate recruited as an official, as regards both the nature and duration thereof and its relevance to the post to be filled (Alexopoulou v Commission, cited above, paragraph 21).

7. Following the judgment in Alexopoulou v Commission, the Commission adopted the decision of 7 February 1996 (hereinafter 'the decision of 7 February 1996), published in Administrative Notices of 27 March 1996, amending the decision of 1 September 1983. The first paragraph of Article 2, as amended, of the latter decision now reads as follows:

   'The [appointing authority] shall appoint a probationary official in the starting grade of the career bracket to which he is recruited.

   By way of exception to this principle, the appointing authority may decide to appoint a probationary official to the higher grade of the career bracket where the specific needs of the service require the recruitment of a person with particular qualifications or where the person recruited has exceptional qualifications.

8. The decision of 7 February 1996 states that it is to take effect on 5 October 1995, the date of the judgment in Alexopoulou v Commission, cited above.

9. A large number of officials applied to be reclassified in the higher grade of the career bracket pursuant to Article 31(2) of the Staff Regulations. More than 80 actions were initiated before the Court of First Instance for annulment of appointment decisions or annulment of decisions rejecting applications for review of a classification decision.

10. The chronology of Mr Gevaert's career as an official and of the decisions material to his dispute with the Commission may be summarised as follows:

    - 18 January 1995: appointment as a probationary official at the Commission, as an administrative assistant in Grade B 5, Step 3, with effect from 1 September 1994, at the Commission;

    - 6 June 1995: established with effect from 1 June 1995;

    - 5 October 1995: date of the judgment in Alexopoulou v Commission and taking effect of the decision of 7 February 1996;

    - 7 February 1996: general decision of the Commission amending the decision of 1 September 1983;

    - 27 March 1996: decision of 7 February 1996 published in Administrative Notices;

    - 24 June 1996: application for review of classification in grade;

    - 26 August 1996: application rejected;

    - 25 November 1996: complaint filed;

    - 3 February 1997: decision expressly rejecting the complaint, notified on 24 February 1997;

    - 23 May 1997: action initiated before the Court of First Instance.

    The contested order

11. Following a plea of inadmissibility raised by the Commission, the contested order declared the action inadmissible on the ground that the decision of 7 February 1996 did not constitute a new fact which would permit the re-opening of the time-limits laid down in Articles 90 and 91 of the Staff Regulations for initiating proceedings against the decision of 18 January 1995 classifying Mr Gevaert in grade.

12. In paragraph 33 of that order the Court observed that Mr Gevaert had not lodged a complaint within the three-month period prescribed in Article 90(2) of the Staff Regulations against the decision of the appointing authority of 18 January 1995 classifying him on recruitment. It pointed out in that regard, in paragraph 34, that an official could not call in question the conditions of his initial recruitment after it had become final.

13. In examining the request for a review of his classification in grade, as formulated by Mr Gevaert, the Court of First Instance considered in paragraphs 35 and 36 of the contested order that even if it was appropriate to interpret the request as meaning that it sought only to obtain a review of his current classification and not of hisclassification at the date of recruitment, the fact none the less remained that that request, based on Article 31(2) of the Staff Regulations, necessarily sought to call in question the conditions of his initial recruitment or, at the very least, was capable of indirectly calling in question the decision of the appointing authority of 18 January 1995, which had become final.

14. After reiterating, in paragraph 37 of the contested order, the principle that only the existence of a material new fact can justify the submission of an application for reconsideration of a decision which was not challenged within the prescribed period, the Court of First Instance held in paragraph 39 that the nature and legal impact of the decision of 7 February 1996 were not such that it constituted a new fact, since it had neither the purpose nor the effect of calling in question administrative decisions which had become final before it entered into force.

15. The Court of First Instance examined the date on which the decision of 7 February 1996 took effect, namely 5 October 1995, the date of the judgment in Alexopoulou v Commission, cited above, and considered in paragraph 40 of the contested order that that meant that the decision applied only to officials recruited after 5 October 1995. In paragraph 42, the Court of First Instance held that in adopting that decision the Commission merely made the necessary amendment to the decision of 1 September 1983, in order to comply with the judgment in Alexopoulou v Commission.

16. The Court of First Instance further observed, in paragraph 43 of the contested order, that Article 31(2) of the Staff Regulations did not contain a rule designed to apply to every official but that, on the contrary, it conferred on the appointing authority the discretion to appoint a newly recruited official, by way of exception, to the higher grade in his career bracket. It also observed that it followed from the judgment in Alexopoulou v Commission that, as a general rule, the appointing authority was not required to examine in each case whether Article 31(2) of the Staff Regulations should be applied or to state reasons for its decision not to make use of that provision.

17. Taking the view that the administration's power to appoint a newly-recruited official to the higher grade of the basic and intermediary career brackets must be regarded as an exception to the general rules on classification, the Court of First Instance held, in paragraph 44 of the contested order, that the adoption of the decision of 7 February 1996 was not susceptible of adversely affecting Mr Gevaert and was not capable of constituting a new fact in his regard.

18. In the light of those considerations and, in particular, the fact that Article 31(2) of the Staff Regulations was in the nature of a derogation, the Court of First Instance held in paragraph 45 of the contested order that the Commission's rejection of an application for reclassification in grade submitted after the expiry of the time-limit for lodging a complaint could not constitute a breach of the principle of equal treatment.

19. In paragraph 46 of the contested order the Court of First Instance also rejected Mr Gevaert's argument that the Commission had failed to fulfil its duty to have regard tothe interests of officials, pointing out that that duty could not lead the administration to construe a Community provision in a manner contrary to its actual wording. In this case, Article 31(2) of the Staff Regulations could not be interpreted as meaning that it was intended to apply to all officials.

20. In paragraphs 47 and 48 of the contested order the Court of First Instance also rejected the argument that it was paradoxical that the Commission should in this case reject the request for reconsideration of the applicant's classification in grade whereas, when it adopted the decision of 1 September 1983, it had offered all officials classified under the old criteria for classification the opportunity to request a review of their classification. The Court of First Instance stated that the opportunity offered in 1983 concerned only a reconsideration according to the criteria on classification in force on the date on which officials were initially recruited, whereas Mr Gevaert requested a reconsideration of his classification according to the new criteria set out in the decision of 7 February 1996.

21. The Court of First Instance found that Mr Gevaert had been unable to establish the existence of new facts making it possible to re-open the periods prescribed in Articles 90 and 91 of the Staff Regulations and held in paragraph 50 of the contested order that he was barred from challenging the decision of 18 January 1995, in consequence whereof the Court of First Instance declared the action inadmissible.

    The appeal

22. The appeal is based on three grounds alleging infringement of Community law. The first ground of appeal alleges an error in the legal classification of Mr Gevaert's request. The second alleges an error in the legal classification of the decision of 7 February 1996 and infringement of the principle of equal treatment and of Article 5(3) of the Staff Regulations. The third alleges a contradiction in the grounds of the contested order.

23. By the first ground of appeal, which is directed against paragraphs 35 to 37 of the contested order, Mr Gevaert contends that the Court of First Instance made an error in the legal classification of the facts in considering that his request for reclassification amounted to calling in question his initial classification, whereas in reality he had requested a review of his classification with effect from 5 October 1995.

24. That error had legal consequences, in that the Court of First Instance considered the existence of a new fact of such a kind as to justify reconsideration of Mr Gevaert's initial classification decision and thus to re-open the period prescribed for lodging a complaint, whereas it should merely have considered whether, with reference to the time when the Commission adopted the initial classification decision, there had been a substantial change of circumstances providing grounds for a request for a review of his present classification.

25. The second ground of appeal, which is directed against paragraphs 39 to 45, is put forward only in the event of the Court's holding that Mr Gevaert's request for reclassification was liable to call in question the decision on his initial classification.

26. Mr Gevaert contends that the decision of the Commission of 7 February 1996 justified a request for a review of his classification in that it constituted a new fact or at least a substantial change in circumstances by comparison with the time when the initial classification decision was adopted. Therefore the decision rejecting that request for a review constitutes a challengeable act and does not merely confirm the initial classification decision.

27. Mr Gevaert contends that, contrary to what the Court of First Instance held, that new fact or, at least, that substantial change in circumstances is liable to lead to discrimination between officials recruited before 5 October 1995 and those recruited after that date and thus to infringe the principle of equal treatment, which is a legal rule of a higher order. That principle is set out, in particular, in Article 5(3) of the Staff Regulations, which provides that '[i]dentical conditions of recruitment and service career [are to] apply to all officials belonging to the same category or the same service.

28. Mr Gevaert acknowledges that the decision of the Commission of 7 February 1996 does not confer on him an automatic right to be classified in the higher grade of his career bracket, owing to the discretion enjoyed by the appointing authority. None the less, he contends that, if Article 31(2) of the Staff Regulations is not to be deprived of all legal significance, that decision confers on him the absolute right to a reconsideration of his qualifications and the specific needs of the service, with a view, if appropriate, to his being classified in a grade other than the basic grade of his career bracket.

29. He therefore maintains that the Court of First Instance infringed the principle of equal treatment and Article 5(3) of the Staff Regulations in holding that the appointing authority was authorised, by virtue of its discretion, to refuse to carry out an objective examination of his qualifications on the ground that Article 31(2) was not intended to apply to all officials.

30. By the third ground of appeal, Mr Gevaert criticises the Court of First Instance for having contradicted itself by stating that the decision of 7 February 1996 had neither the purpose nor the effect of calling in question classification decisions that had become final, in other words classification decisions adopted more than three months previously, while recognising that the decision applied to all officials recruited after 5 October 1995, in other words even to those in respect of whom the classification decision had been adopted more than three months previously and had therefore become final.

31. The Commission contends that the first ground of appeal, alleging an error in the classification of Mr Gevaert's request, is unfounded. It refers, in particular, to thepassage in paragraph 36 of the contested order from which it follows that, even following the appellant's argument, 'it none the less remains that that request is susceptible of indirectly calling in question the decision of the appointing authority of 18 January 1995, which has become final.

32. As regards the second ground of appeal, the Commission states that the sole purpose of the decision of 7 February 1996 was to incorporate in the decision of 1 September 1983, in the interest of transparency, the principles defined in the judgment in Alexopoulou v Commission, which were binding on the Commission. A decision of that type is an internal directive which must be regarded as a self-imposed guideline which the Commission is required to follow even in the exercise of the discretion conferred on it.

33. Since the decision of 7 February 1996 merely set out the principle of the Staff Regulations referred to in Alexopoulou v Commission, and since a judgment cannot in itself constitute a new fact vis-à-vis those not parties to the case, the Commission maintains that that decision could not be relied on by Mr Gevaert as a new fact justifying a request for a review of his classification.

34. As regards the alleged infringement of the principle of equal treatment, the Commission submits that the case-law cited by Mr Gevaert in his application has no relevance to the present case, since it relates to a situation in which a new rule is intended to apply without distinction to all officials able to claim that they are in a certain situation, whereas the appellant's case, on the other hand, concerns Article 31(2) of the Staff Regulations, which confers on the appointing authority a discretion to appoint a newly recruited official to the higher grade in the career bracket.

35. In response to the third ground of appeal, the Commission contends that in the decision of 7 February 1996 it merely informed officials of the scope of Article 31(2) of the Staff Regulations, as reaffirmed in Alexopoulou v Commission, but did not create any new rights. It therefore denies that there is any contradiction in the grounds of the contested order.

    Findings of the Court

    First ground of appeal

36. For the purpose of determining whether the Court of First Instance committed an error of classification in holding that Mr Gevaert's request was designed to call in question the conditions of his initial recruitment, it should first of all be noted that the request which he submitted on 24 June 1996 was entitled 'Request for reclassification on the basis of Article 31(2) ('Aanvrag tot herklassering op basis van art. 31 par. 2) and states, inter alia, that be considers that he has sufficient experience and qualificationsto request a review of his present grade ('... I believe I have the sufficient experience and skills to demand a review of my actual grade).

37. The objective of the complaint which Mr Gevaert submitted on 25 November 1996 is clear from the reference to 'reclassification. The complaint states that Mr Gevaert seeks 'a reconsideration of his administrative situation and an appropriate adjustment in his classification and that the Commission 'therefore fails to appreciate the scope of the request in regarding it as challenging the initial classification decision.

38. As the request concerns Article 31(2) of the Staff Regulations, it should be pointed out that that provision deals with the classification in grade, on recruitment, of officials who have just been successful in a competition for entry to the European civil service.

39. A request for reclassification therefore seeks a review of the initial classification in grade made when the official was appointed. That situation must be distinguished from the grant of a promotion, which, in accordance with Article 45(1) of the Staff Regulations, raises an official, in the course of his career, to a higher grade in the category to which he belongs.

40. As the Court has already held, the power conferred by Article 31(2) of the Staff Regulations exceptionally, by way of derogation from Article 31(1), to appoint an official to the higher grade in a career bracket rather than to the basic grade, with the attendant budgetary consequences, is designed to enable the appointing authority to take account of the specific needs of the service and the professional experience of the official concerned at the time of his appointment (see, in that regard, Case C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, paragraphs 14 and 15).

41. It follows that, even if the review of classification requested by Mr Gevaert did not take effect until 5 October 1995, it should be based on a consideration of his special qualifications and professional experience on the date on which he was initially recruited.

42. The Court of First Instance was therefore correct in holding in paragraph 35 of the contested order that Mr Gevaert's request, based on Article 31(2) of the Staff Regulations, necessarily sought to call in question the conditions of his initial classification.

43. The first ground of appeal must therefore be rejected.

    Second ground of appeal

44. It is appropriate, at the outset, to determine the scope of the decision of 7 February 1996. That decision, which was published on 27 March 1996, states that it is to take effect on 5 October 1995, the date of the judgment in Alexopoulou v Commission.

45. That decision, which was adopted in the form of a measure taken in order to comply with the judgment in Alexopoulou v Commission, amended the criteria for classifying newly recruited officials applied by the Commission since the decision of 1 September 1983, and admitted the possibility of a review of the classification of a certain category of officials, namely those appointed after 5 October 1995.

46. That decision therefore had the effect of calling in question administrative decisions which had become final, contrary to what the Court of First Instance states in paragraph 39 of the contested order, since certain officials were able to request a review of their classification even though they had not brought an action within the prescribed periods against the decision determining their classification upon appointment.

47. As regards the argument that Article 31(2) of the Staff Regulations does not contain a rule intended to apply to all officials, it is sufficient to observe that, as the Court of First Instance itself held, 'in order to prevent Article 31(2) of the Staff Regulations from being deprived of any legal significance, ... the appointing authority is required in special circumstances, such as where a candidate has exceptional qualifications, specifically to assess the possible application of that provision. Such an obligation arises in particular where the specific needs of the department require the recruitment of a specially qualified official and therefore justify resort to Article 31(2) of the Staff Regulations or where the person recruited possesses exceptional qualifications and requests the application of those provisions (Alexopoulou v Commission, cited above, paragraph 21).

48. It follows that, although the appointing authority has a discretion when assessing the needs of a department and the professional experience of a candidate, that discretion does not mean that it is not required to consider a request for the application of the provisions of Article 31(2) of the Staff Regulations from a candidate official who believes that he has exceptional qualifications.

49. Consequently, the decision of 7 February 1996 altering the criteria for classification was a decision of general application which called in question a number of administrative decisions which had become final. Contrary to what the Court of First Instance states in paragraph 39 of the contested order, it thereby constituted a new fact liable to have an adverse effect on officials recruited before 5 October 1995. Consequently, those officials had to be in a position to submit a request to the Commission, within the periods prescribed in Articles 90 and 91 of the Staff Regulations, for a review of their classification.

50. It follows that the request for reclassification formulated by Mr Gevaert on 24 June 1996 was submitted validly and that his action before the Court of First Instance against the decision rejecting that request was admissible.

51. As the second ground of appeal is well founded, the contested order must be set aside, without its being necessary to examine the third ground of appeal.

    Substance of the action

52. In accordance with Article 54 of the EC Statute of the Court of Justice and the corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice, as the state of the proceedings so permits, the Court of Justice will itself give final judgment on the substance of the application for annulment of the decision of the Commission of 26 August 1996 rejecting Mr Gevaert's request for a review of his classification in grade.

53. Mr Gevaert maintains that that decision is based on a general decision that is vitiated by illegality. The decision of 7 February 1996 infringes the principle of equal treatment, since it does not apply to officials appointed before 5 October 1995.

54. In that regard, it should be pointed out that the principle of equality of treatment laid down in Article 5(3) of the Staff Regulations is a general rule forming part of the law applicable to the Community civil service. Discrimination contrary to that rule occurs where identical or comparable situations are treated in an unequal way and the discrimination is not objectively justified (see, in that regard, Joined Cases 198/81 to 202/81 Micheli and Others v Commission [1982] ECR 4145, paragraphs 5 and 6; for the conditions of recruitment, see Joined Cases 66/83 to 68/83 and 136/83 to 140/83 Hattet and Others v Commission [1985] ECR 2459, paragraph 24, and Case 119/83 Appelbaum v Commission [1985] ECR 2423, paragraph 25).

55. In the present case, the decision of 7 February 1996 treated officials appointed after 5 October 1995 more favourably than those appointed before that date, since those who had been appointed after 5 October 1995 were able to request that their classification be reconsidered, whereas those who had been appointed before that date were no longer able to do so.

56. That difference in treatment is not objectively justified by the fact that 5 October 1995 is the date on which the judgment in Alexopoulou v Commission was delivered. For the purpose of complying with that judgment, it was not necessary, as regards officials who were not parties to the proceedings, to take 5 October 1995 as the date on which the decision of 7 February 1996 was to take effect. Furthermore, although, in adopting that decision, the Commission displayed a regard for the welfare of officials who had been appointed after 5 October 1995 and had not challenged the classification decision within the prescribed period, there is nothing to justify, or even explain, why it did not extend that concern to officials who had been appointed between 1983 and 5 October 1995 and were in the same situation.

57. It must therefore be held that, in so far as it treated comparable situations in an unequal way without even stating any reasons that might objectively justify thatdifferentiation, the decision of 7 February 1996 infringed the general principle of equal treatment laid down in Article 5(3) of the Staff Regulations.

58. It follows that the decision of 26 August 1996 rejecting Mr Gevaert's request for a review of his classification in grade must be set aside, since it was based on that general decision infringing the principle of equal treatment.

    Costs

59. Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court of Justice itself gave final judgment in the case, the Court is to make a decision as to costs. Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they are applied for in the successful party's pleadings. Since Mr Gevaert has applied for costs and the Commission has been unsuccessful, it must be ordered to bear its own costs and also to pay the whole of the costs incurred by Mr Gevaert before the Court of First Instance and before the Court of Justice.

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1. Sets aside the order of the Court of First Instance of 19 August 1998 in Case T-160/97 Gevaert v Commission;

2. Annuls the decision of the Commission of the European Communities of 26 August 1996 rejecting Mr Gevaert's request for a review of his classification in grade;

3. Orders the Commission of the European Communities to bear all the costs of the proceedings before the Court of First Instance and the Court of Justice.

Edward Jann Sevón

Delivered in open court in Luxembourg on 11 January 2001.

R. Grass A. La Pergola

Registrar President of the Fifth Chamber

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1: Language of the case: French.