Summary
Parties
Grounds
Decision on costs
Operative part
Keywords

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1. Officials - Actions - Act adversely affecting an official - Decision on a request for reclassification - Appointment as a probationary official

(Staff Regulations, Arts 90 and 91)

2. Community law - Principles - Legal certainty - Act of the administration having legal effects - Need for clarity and precision - Obligation to notify interested parties

3. Officials - Actions - Prior complaint through official channels - Time-limits - Request for reclassification - Implied rejection - Complaint - Action brought before the expiry of the period allowed for a reply to the complaint - Inadmissibility

(Staff Regulations, Arts 90 and 91)

4. Officials - Recruitment - Classification in step - Additional seniority in step - Criteria for granting additional seniority - Discretion of the administration - Training and previous experience - Appraisal on the date of appointment as a probationary official

(Staff Regulations, Art. 32, second paragraph)

5. Officials - Recruitment - Equal treatment

(Staff Regulations, Art. 5 (3))

Summary

1. In a case where reclassification is requested the decision appointing a person as a probationary official - which must be in writing, must have been taken by the appointing authority, must specify the date on which the appointment takes effect, and must assign the official to a post - is to be seen as the act adversely affecting the official. That is the decision which defines the duties for which the official has been appointed and definitively fixes the corresponding grade.

2. The principle of legal certainty, which forms part of Community law, requires that every measure of the administration having legal effects must be clear and precise and must be drawn to the attention of the person concerned in such a way that he can ascertain exactly the time at which the measure comes into being and starts to produce its legal effects, particularly as regards the period allowed for bringing an action to challenge it.

3. Although an official is entitled to request the appointing authority to reconsider his classification, in order to encourage an amicable settlement of the dispute between himself and the administration by allowing the administration to review its position, that option does not have the effect of allowing him to set aside the time limits laid down in the Staff Regulations for lodging a complaint and for applying to the Court.

An application lodged before the expiry of the period allowed for a reply to the complaint against the implied decision of rejection is premature and hence inadmissible.

4. The appointing authority has a wide discretion, within the limits laid down by the second paragraph of Article 32, to allow additional seniority in step on recruiting an official, in order to take account of the training and previous experience of the person concerned, both as regards the nature and the duration of that experience and its relationship, be it close or otherwise, to the requirements of the post to be filled.

The training and special experience in question should be appraised as at the time of appointment as a probationary official.

5. There is a breach of the principle of equal treatment laid down in Article 5(3) of the Staff Regulations when two categories of person whose factual and legal circumstances disclose no essential difference are treated differently at the time of their recruitment

The same is true where situations which are different are treated in an identical manner

Parties

In Joined Cases T-18/89 and T-24/89,

Harissios Tagaras, a former official of the Court of Justice of the European Communities, now an official of the Commission of the European Communities, residing in Brussels, represented by E. Sakhpekidou, of the Thessaloniki Bar, and at the hearing by A. Kalogeropoulos, of the Athens Bar, with an address for service in Luxembourg at the Chambers of Catherine Thill, 17 Boulevard Royal,

applicant,

v

Court of Justice of the European Communities, represented by Francis Hubeau, Head of the Personnel Division, acting as Agent, assisted by Konstantinos T. Loukopoulos, of the Athens Bar, with an address for service in Luxembourg at the office of its Agent, Court of Justice, Erasmus Building, Kirchberg,

defendant,

APPLICATION for the annulment of the decision of the Court of Justice of 23 September 1986 appointing the applicant as a probationary official, in so far as it classifies him in Step 1 of Grade A 7,

THE COURT OF FIRST INSTANCE (Fourth Chamber),

composed of: R. Schintgen, President of the Chamber, D. A. O. Edward and R. García-Valdecasas, Judges,

Registrar: H. Jung,

having regard to the written procedure and further to the hearing on 20 September 1990,

gives the following

Judgment

Grounds

Background to the action

1 The applicant, Mr Harissios Tagaras, applied to take part in Open Competition No CJ 36/84 organized by the Court of Justice of the European Communities to constitute a reserve of administrators (Official Journal 1984 C 254, p. 5). In his application form, dated 22 October 1984, he stated at point 19 ("Distinctions and decorations") that he would shortly receive his doctorate in law, since his thesis had received the requisite approval on 26 June 1984 and was due to be defended in public in November 1984. Mr Tagaras was entered on the reserve list drawn up on completion of the tests in the competition. In its administrative meeting of 10 July 1985 the Court of Justice approved "the appointment of Mr Harissios Tagaras as a probationary official to a post of administrator with Greek legal training in the Research and Documentation Division, in Grade A 7, Step 1. The date of commencement of his duties is to be fixed later".

2 As appears from the exchange of correspondence between the applicant and the appointing authority, the date of his entry into service was postponed at his request on several occasions, mainly to enable him to discharge his military obligations, before being finally set for 8 September 1986.

3 It is apparent inter alia from a letter of the applicant dated 10 September 1985 that he had originally expected to be able to take up his duties on 1 November 1986. In that letter, however, he considered various possibilities of bringing that date forward. The first possibility, of which no further details are given, would have enabled him to take up his duties between 1 May and 1 June 1986. Under a second arrangement he would have done so in November 1985 for an initial period of two to three months, possibly working part-time pending the grant, in the course of 1986, of around six months' leave on personal grounds. According to a third possibility the applicant would initially have carried out research work under a free-lance contract for a period of between six and eight months before being recruited as a probationary official.

4 After a number of telephone conversations between various members of the Personnel Division of the Court and Mr Tagaras regarding the date of his entry into service, the Registrar of the Court wrote to him on 6 December 1985 to "inform him that the Court of Justice [was] able to recruit [him] as a probationary official to a post of administrator in the Research and Documentation Division, in Grade A 7, Step l" and that in the interests of the service he should take up his duties as soon as possible. As the last two arrangements proposed by the applicant were not satisfactory to the department concerned, he was told that the first possibility, entailing his entry into service in May 1986, had to be taken up.

5 However, in a letter sent in March 1986, the applicant stated that he could not take up his duties before the end of his military service, on 3 September 1986.

6 By letter of 27 June 1986 the Head of the Personnel Division informed him that 8 September 1986, finally selected as the date for his entry into the service of the Court, was mandatory and that "any further postponement of [his] entry into service would cause [this] offer of employment to be withdrawn". In the third paragraph of the letter he also confirmed that the applicant would be "classified in Step 1 of Grade A 7", adding that "[his] remuneration, taxes and contributions to the pension fund and the sickness and accident insurance fund [would] be calculated according to the attached statement (subject to verification of [his] entitlements at the time of [his] entry into service)".

7 Mr Tagaras took up his duties on 8 September 1986. On 26 September 1986 he was notified of a decision adopted by the Court in its capacity as appointing authority, signed by the Registrar and dated 23 September 1986, in the following terms:

"The Court, in its capacity as appointing authority, at the administrative meeting of 10 July 1985, having regard to Articles 1, 4, 7 and 27 to 34 of the Staff Regulations and to the report of the selection board for Open Competition No CJ 36/84, having regard to Vacancy Notice No CJ 51/85 and acting on the proposal of the Registrar, has decided as follows:

Mr Harissios Tagaras is hereby appointed a probationary official from 8 September 1986 as an administrator in the Research and Documentation Division, in Grade A 7, Step 1, with his next advancement in step on 1 September 1988."

8 On 7 November 1986, the applicant sent the appointing authority a memorandum which was registered in accordance with his instructions as a request under Article 90(1) of the Staff Regulations of Officials of the European Communities. He asked the appointing authority to reconsider and change his classification in step on account of his training and special experience.

9 On 2 April 1987 the applicant sent the appointing authority an "addendum" to his request of 7 November 1986, in which he supplied further information regarding his training and experience which he had not set out in his application form for Competition No CJ 36/84, either because he had considered it superfluous or because it covered qualifications acquired after the submission of his application.

10 It is clear both from his application form and from his memorandum of 7 November 1986 and the other documents before the Court that when he took up his duties at the Court of Justice in September 1986 the applicant had undergone training attested by the following diplomas:

- a diploma from the Faculty of Law of the University of Thessaloniki, granted in November 1977;

- a specialized degree in European law granted by the Institut d' Études Européennes of the Université Libre de Bruxelles, following a two-year course (the academic years 1978/79 and 1979/80);

- a doctorate in law awarded by the University of Thessaloniki. His thesis, prepared under the supervision of Professor Evrigenis, on the relationship between private international law and Community law, had been approved in June 1984 and, after being defended in public in November 1984, had been assessed as "excellent".

11 By the same date the applicant could point to the following experience:

- from 30 November 1977 to 18 September 1979 (21 months) he had worked as a trainee lawyer at the Chambers of Nikos Tagaras and appeared in some twenty cases before the magistrate' s court of Thessaloniki and some twenty further cases before the court of first instance of Thessaloniki;

- from 16 October 1980 to 15 April 1983 (30 months) he had been employed by the Council of the European Communities, where he had held a post of lawyer-linguist;

- from 1 June 1983 to 30 November 1984 (18 months) he had worked as an academic assistant at the Centre for International and European Economic Law in Thessaloniki, carrying out research into a variety of issues concerning the application of Community law in Greece;

- during the academic year 1985/86 (9 months) he had been an assistant lecturer at the School of Administrative and Economic Studies of the TEI (Institute for Technical Training) in Thessaloniki, where he had taught "international economic institutions" and "elements of European law" and supervised the graduating essays of six students;

- in 1986 he had published twelve academic legal articles and notes on case-law, all concerning issues of Community law.

12 On 12 May 1987 the applicant lodged, in the alternative, a complaint against the implied rejection of the request contained in his memorandum of 7 November 1986, mentioned above, in case it was regarded not as a complaint for the purposes of Article 90(2) of the Staff Regulations but merely as a request for reclassification submitted under Article 90(1).

13 The applicant was successful in Competition No COM/A/408 organized by the Commission and was employed by that institution in 1987. On 30 September 1987 the classification committee of the Commission decided to classify Mr Tagaras in Category A, Grade A 7, Step 3, granting him additional seniority of forty-eight months - the maximum allowed under Article 32 of the Staff Regulations. On 1 October 1987 he tended his resignation to the Court. The resignation was confirmed by decision of the appointing authority of 14 October 1987 and took effect on 31 December 1987.

Procedure

14 Those were the circumstances in which Mr Tagaras, by application lodged at the Registry of the Court of Justice on 2 June 1987, brought an action for the annulment of the Court' s decision of 23 September 1986 appointing him as a probationary official in so far as it classified him in Step 1 of Grade A 7 and of the implied decision rejecting his complaint of 7 November 1986. The application was entered as Case 162/87.

15 The defendant raised an objection of inadmissibility on 26 August 1987.

16 By application lodged at the Registry of the Court of Justice on 18 November 1987 Mr Tagaras brought a second action in case the earlier application should be declared inadmissible; in it he sought the annulment of (a) the Court' s decision of 23 September 1986 appointing him as a probationary official in so far as it classified him in Step 1 of Grade A 7, (b) the implied decision rejecting his request of 7 November 1986, and (c) the implied decision rejecting his complaint of 12 May 1987. The application was entered as Case 351/87.

17 In response to the second application the defendant raised a further objection of inadmissibility on 8 January 1988.

18 On 10 February 1988 the Court (Third Chamber) ordered Cases 162/87 and 351/87 to be joined for the purposes of the written procedure, the oral procedure and the judgment, and decided to reserve its decision on the objections of inadmissibility for the final judgment.

19 The written procedure was conducted entirely before the Court of Justice. It followed the normal course.

20 By virtue of Article 14 of the Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities, the Court of Justice (Third Chamber) made an order on 15 November 1989 referring the cases to the Court of First Instance. Case 162/87 was registered at the Court of First Instance as Case T-18/89 and Case 351/87 as Case T-24/89.

21 In Case T-18/89, the applicant claims that the Court should:

(1) annul, withdraw or modify the decision of 23 September 1986 appointing him, in so far as it classifies him in Step 1 of Grade A 7, and the implied decision rejecting his complaint of 7 November 1986;

(2) order the defendant, pursuant to the principle of equal treatment of Community officials and the principle of sound administration, to classify him in the correct step, namely Step 3, with retroactive effect from 8 September 1986;

(3) order the defendant to pay him the difference in salary between the former step and the new step, together with statutory interest at 8% running from the date on which it fell due;

(4) order the defendant to pay the costs.

22 In Case T-24/89 the applicant claims that the Court should:

(1) annul the implied decisions rejecting his request of 7 November 1986 and his complaint of 12 May 1987 and, accordingly, declare unlawful his classification in Step 1 of Grade A 7, as fixed in the decision of 23 September 1986 appointing him;

(2) order the defendant to pay him the difference in salary between Step 1 of Grade A 7 and the new step, which, pursuant to the principle of equal treatment of Community officials and the principle of sound administration, must be Step 3 - such difference in salary to be paid with effect retroactive to 8 September 1986, together with statutory interest at 8% running from the date on which it fell due;

(3) order the defendant to pay the costs.

23 In both cases the defendant contends that the Court should:

(1) dismiss the applications as inadmissible;

(2) in the alternative, dismiss the applications as vague and unfounded in law or in fact;

(3) make an order for costs in accordance with the relevant provisions of the Rules of Procedure.

24 Upon hearing the report of the Judge-Rapporteur the Court of First Instance decided to open the oral procedure without any preparatory inquiry.

25 However, the Court of First Instance requested the defendant to disclose the criteria which it generally applies for the initial classification of officials in Category A and the manner in which those criteria were applied in the applicant' s case and in the case of four other officials named by the applicant in both applications, by comparison with whom he claims to have suffered discrimination.

26 By letter of 18 July 1990 the defendant informed the Court of First Instance that, unlike other Community institutions, the Court of Justice has not adopted a general decision on the classification in step of new officials pursuant to Article 32 of the Staff Regulations. It further explained that, in applying Article 32 of the Staff Regulations to such persons, the appointing authority assesses the training and special experience of the individual in each case. The defendant also supplied all the relevant documents relating to the classification of the officials named in the two applications.

27 The hearing took place on 20 September 1990. The Court of First Instance heard the arguments of the parties' representatives and their replies to its questions.

28 At the hearing the defendant admitted that, when adopting the decision classifying Mr Tagaras in step solely on the basis of the information contained in his application form of 22 October 1984, it had nevertheless not taken into consideration the reference to the doctor