Opinion of the Advocate-General
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My Lords,
In this case Mr Powell seeks the annulment of a decision of the Commission of 1 March 1974 appointing him as a probationary official with effect from 11 February 1974 and a decision of 31 October 1974 establishing him as an official in DG II with effect from 11 November 1974 in so far as those decisions classified him in Grade A5 . He also challenges a decision dated 6 January 1984 of the Director-General for Personnel and Administration which confirmed his classification in A5 and the dismissal of his complaint against such classification . In his claim he initially asked the Court to declare that he was, or should be, classified in A4 with effect from 11 February 1974 but in his reply he has withdrawn that application .
The Commission initially contended that this application was inadmissible . That contention was rejected by the Court in its judgment of 14 November 1985 . In that judgment, and in my Opinion delivered on 6 June 1985, the facts of the case are set out fully, so they can be stated more briefly today .
At the time of his initial appointment there was in operation a decision of 6 June 1973 on the criteria applicable to grade and step classification on recruitment . That provided, in Article 1 under the heading "Appointment to the starting grade of the starting career bracket of a category", that "the appointing authority shall generally appoint the selected candidate as a probationer in the starting grade of the starting career bracket of his category or service ". An exception, however, was provided by Article 3 of that decision under the heading "Appointment to a higher grade of a career bracket" as follows ( so far as relevant ):
"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 ... of at least : 12 years for Grade A4 ..."
On the basis of that decision, Mr Powell was offered a post in Grade A5, step 3 . By his letter of 2 November 1973 he initially refused that offer on the basis that his experience and his status justified appointment at least in Grade A4 . By letter of 21 November from the Director for Personnel he was told that the grading A5, step 3 must be adhered to . But then come some words to which the applicant attaches importance . "The committee made a special recommendation that your grading should be re-examined towards the end of your probationary period ... We in the Personnel Department will ensure, in collaboration with your future employing department, that this recommendation is acted upon ". On 26 November he accordingly accepted the post offered, "... on the understanding that the initial grading of A5/3 will be re-examined towards the end of the probationary period with a view to my being then regraded as A4 ".
That does not seem in fact to have been done . There is no suggestion that there was any re-examination with a view to his regrading and it was only by letter of 27 May 1982 from the Directorate for Personnel, after he had raised the matter again, that he was told that, following a general review, "it was decided not to review the individual marginal cases such as yours ". The letter added, "I am pleased to note that you have been proposed this year by DG II for promotion to A4 and I sincerely hope that you obtain this promotion before not too long ".
There is a further Commission document upon which reliance has been placed by the applicant . In March 1981 the Directorate-General for Personnel and Administration circulated a notice setting out the 1973 Decision in Annex I and the practice of the Grading Committee in Annex II . In Annex II at paragraph 2, under the heading "Career bracket A7/6" it is said that : "Where university studies are short, practical experience is taken into account only with effect from the fourth year following the completion of advanced secondary studies ".
Subsequently, the 1973 Decision on criteria was replaced by a decision of 1983 . When announcing that new decision, the Director-General for Personnel and Administration stated that any official graded under the old decision who felt that he had not been graded according to the criteria laid down by it had a final opportunity to apply for regrading within three months of the date of that publication .
Following two earlier complaints which were rejected by the Commission on 5 January and 8 July 1983 respectively, Mr Powell, in response to this invitation, made yet another request for reclassification on 22 November 1983 which was rejected on 6 January 1984 . In that letter of rejection, the Director-General for Personnel and Administration stated that, after examination of the file by the Grading Committee which assessed Mr Powell' s professional experience as 12 years, three months, reduced to 11 years, three months since he held a diploma of a university of short duration such as that referred to in paragraph 2 of the Annex II to which I have just referred, his initial classification in A5, step 3 was maintained . His complaint against that decision, dated 2 February 1984, was not answered and is to be treated as implicitly rejected .
Mr Powell' s case is very short on the principal point . He was at Trinity College, Dublin from 1957 to 1961, that is four years . By the date he was appointed to his post with the Commission he had 12 years, three months' relevant experience . Both of these facts are admitted by the Commission . It follows that even if paragraph 2 of Annex II applies, which he challenges, in my view rightly, he had still done four years of university study after his advanced secondary school diploma so that he had more than 12 years' experience . Accordingly, he claims that both in 1973 and in 1984 his grading was adopted on a wrong factual basis, namely that he had only had 11 years' experience .
The Commission, in its reply and through its counsel today, accepts that that is an error of fact and that he had had 12 years' or more experience . What, however, the Commission argues is that this is a matter of discretion for the Commission . The Commission does not have to appoint someone at Grade A4 merely because he has had 12 years' experience . This contention of the Commission that the matter is discretionary is clearly right . However, it seems to me to be plain that the discretion is one which must be exercised and must be exercised on proper principles .
I find it quite impossible to say, as the Commission pleads in its defence, that in this case the Commission had appreciated the recruitment requirements at the moment of Mr Powell' s appointment which did not justify making an exception in his case .
On the evidence, that plainly was not the position in 1984 . The Commission proceeded on the basis that he had only had 11 years' experience; on that basis the conditions for the exercise of the discretion did not arise and the Commission cannot say that it exercised the appropriate discretion in 1984 . There is nothing on the file, nor has it been suggested in argument, that any other reason motivated the Commission when the initial decision was taken in 1973 . To my mind the inference is plain that the same error of fact was made and for that reason the discretion was not exercised because he was not thought to be qualified .
On that basis alone, in my view, the decisions both of 1973 and 1984 must be annulled and the Commission must reconsider the matter . Counsel for the Commission is right to say that the Commission sticks to its guns in considering this to be a matter of discretion . What it plainly cannot do is to repeat without proper reconsideration the earlier classification . He is entitled to have the matter looked at afresh .
The applicant has taken four other points which I can deal with very shortly . He says, first of all, that Article 5 ( 1 ) of the Decision of 1973 allows his other experience to be taken into account . I do not find that this assists him at all . That article is dealing simply with the granting of additional steps within a grade and has no relevance to the present claim .
Secondly he says that, on the facts, the recruitment requirements exceptionally justified him being classified in A4 . He relies on a telephone call on 21 November 1973 from the director concerned to encourage him to accept the post in Grade A5 . That, in itself, is plainly not enough; it does not seem to me that on the material available the Court can decide this matter . It is one for the Commission, although it is to be noted that it is plain that the Commission were keen at that time to have this man as an official . He was induced to withdraw his refusal of the offer by a promise of a review at the end of his probationary period . That, in my view, is a fact for the Commission to take into account .
Then, thirdly, he contends that what has happened here is a breach of Article 5 ( 3 ) of the Staff Regulations which requires identical conditions of recruitment to be applied to all officials belonging to the same category or service . He says that, in answer to a question from the Court in Case 343/82 Michael v Commission (( 1983 )) ECR 4023, it was said that the Commission had always appointed a person to the higher grade in the bracket when he had the experience required by Article 3 of the 1973 Decision . However, the Commission now says that that answer related only to a situation where someone in the starting, rather than the intermediate, grade was appointed . It is not possible, in my view, for the Court to decide that matter on the evidence . Nor is it possible for the Court to investigate the fourth subsidiary point raised by Mr Powell, namely whether, because of budgetary deficiencies, there had been discrimination against him as well as other officials from the three new Member States in 1973 which vitiates the decision, though it is to be noted, however, that that allegation is not contested by the Commission .
However, on the main point in the case, in my view, the appropriate order here is that the decisions of 1 March and 31 October 1974 and of 6 January 1984 together with the implied rejection of his complaint dated 2 February 1984 should be annulled and the matter should be remitted to the Commission for reconsideration . The applicant' s costs of these proceedings and of the proceedings in relation to admissibility should be paid by the Commission .
(*) Language of the Case : French .
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