1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 28 JULY 1983 , MR ADAM P . H . BLOMEFIELD , AN OFFICIAL OF THE COMMISSION IN GRADE L/A 7 , BROUGHT AN ACTION SEEKING THE ANNULMENT OF THE COMMISSION ' S DECISION OF 7 JANUARY 1982 REFUSING TO REVIEW THE DECISION TO CLASSIFY HIM IN STEP 1 OF GRADE L/A 7 AS FROM HIS APPOINTMENT ON 1 AUGUST 1977 .
2 AFTER PASSING COMPETITION NO COM/LA/141 ( OFFICIAL JOURNAL 1976 , C 127 , P . 6 ), THE APPLICANT WAS APPOINTED IN 1977 TO AN ASSISTANT TRANSLATOR ' S POST WHICH HAD BEEN ADVERTISED IN VACANCY NOTICE NO 54/77 . IN THAT NOTICE THE NATURE OF THE DUTIES INVOLVED WAS DEFINED AS THE TRANSLATION OF ALL TYPES OF TEXT FOR THE DEPARTMENTS OF THE COMMISSION ; THE QUALIFICATIONS REQUIRED BY THE NOTICE INCLUDED SOME EXPERIENCE OF TRANSLATION .
3 ORIGINALLY , AS A LETTER OF 22 APRIL 1977 SHOWS , THE COMMISSION HAD ENVISAGED CLASSIFYING THE APPLICANT IN GRADE L/A 8 , STEP 2 . IN A LETTER OF 6 MAY 1977 MR BLOMEFIELD ARGUED THAT IN VIEW OF HIS AGE - AT THAT TIME 31 YEARS - AND HIS PREVIOUS EXPERIENCE IN THE SERVICE OF A PRIVATE COMPANY , WHICH HAD ENTAILED CONTACT WITH COMMUNITY MATTERS AND TRANSLATION WORK CONNECTED WITH COMMUNITY LEGISLATION , HE SHOULD BE CLASSIFIED IN GRADE L/A 7 .
4 THE COMMISSION ACCEDED TO THAT REQUEST , AND THE APPLICANT WAS APPOINTED A PROBATIONARY OFFICIAL IN GRADE L/A 7 , STEP 1 , WITH EFFECT FROM 1 AUGUST 1977 . HE WAS SUBSEQUENTLY ESTABLISHED IN THE SAME GRADE AND STEP BY A DECISION OF 26 APRIL 1978 .
5 IN MARCH 1981 THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION DISTRIBUTED TO ALL MEMBERS OF STAFF A CIRCULAR CONTAINING THE TEXT OF A ' ' DECISION ON THE CRITERIA APPLICABLE TO GRADE AND STEP CLASSIFICATION UPON RECRUITMENT ' ' , ORIGINALLY ADOPTED ON 6 JUNE 1973 . APPENDED TO THAT DECISION WERE TWO FURTHER TEXTS FORMING ANNEXES II AND III TO THE CIRCULAR AND DEALING WITH THE PRACTICAL APPLICATION OF THE DECISION AND WITH THE MEMBERSHIP OF THE ' ' GRADING COMMITTEE ' ' SET UP UNDER ARTICLE 6 THEREOF .
6 AFTER RECEIVING THE CIRCULAR , THE APPLICANT SUBMITTED TO THE COMMISSION , IN A MEMORANDUM OF 6 JUNE 1981 , A REQUEST UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS , SEEKING CLASSIFICATION IN STEP 3 OF GRADE L/A 7 AS FROM HIS COMMENCEMENT OF EMPLOYMENT . HE EXPLAINED THAT HE WAS UNAWARE OF THE DECISION OF 6 JUNE 1973 AT THE TIME OF RECRUITMENT AND POINTED OUT THAT ON TAKING UP THE POST HE COULD SHOW EVIDENCE OF ALMOST SEVEN YEARS ' EXPERIENCE IN THE SERVICE OF A PRIVATE COMPANY IN THE UNITED KINGDOM . HE ARGUED THAT IN VIEW OF THAT EXPERIENCE ADDITIONAL SENIORITY OF 48 MONTHS SHOULD HAVE BEEN GRANTED TO HIM PURSUANT TO ARTICLE 5 OF THE DECISION AND ANNEX II TO THE CIRCULAR .
7 BY A LETTER OF 7 JANUARY 1982 THE COMMISSIONER RESPONSIBLE FOR PERSONNEL MATTERS REPLIED TO THE APPLICANT ' S REQUEST IN THE FOLLOWING TERMS :
' ' I AM CALLED UPON IN MY CAPACITY AS APPOINTING AUTHORITY TO REPLY TO YOUR REQUEST FOR RECLASSIFICATION . . .
THE CLASSIFICATION COMMITTEE HAS REEXAMINED YOUR CASE IN THE LIGHT OF THE CRITERIA INCORPORATED IN THE DECISION OF 6 JUNE 1973 AND IN THE LIGHT OF THE JURISPRUDENCE CONCERNING THE APPLICATION OF THE CRITERIA AT THE TIME WHEN THE SUCCESSFUL CANDIDATES OF COMPETITION COM/LA/141 WERE RECRUITED .
AT THEIR MEETING OF 1 NOVEMBER 1981 THE CLASSIFICATION COMMITTEE REAFFIRMED THAT THE GRADE L/A 7 STEP 1 WAS IN CONFORMITY WITH THE CRITERIA APPLICABLE AT THE TIME OF YOUR RECRUITMENT AND WITH THE GRADES AND SENIORITY GRANTED TO OTHER LAUREATS OF THE SAME COMPETITION , AND THEREFORE CONCLUDED THAT THERE WERE NO GROUNDS FOR YOUR INITIAL GRADING TO BE REVISED .
I REGRET TO INFORM YOU THAT I CONCUR WITH THE COMMITTEE ' S CONCLUSION AND MUST THEREFORE TURN DOWN YOUR REQUEST FOR RECLASSIFICATION . ' '
8 IN RESPONSE TO THAT DECISION THE APPLICANT SUBMITTED A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , WHICH WAS REGISTERED ON 8 JANUARY 1982 . THE COMPLAINT RECEIVED NO ANSWER WITHIN THE PERIOD LAID DOWN BY THE STAFF REGULATIONS AND , ON 28 JULY 1982 , THE APPLICANT BROUGHT AN ACTION BASED ON THE SECOND PARAGRAPH OF ARTICLE 32 OF THE STAFF REGULATIONS AND ON ARTICLE 5 ( 1 ) OF THE DECISION OF 6 JUNE 1973 IN CONJUNCTION WITH PARA- GRAPH 3 ( C ) OF ANNEX II TO THE CIRCULAR OF MARCH 1981 .
ADMISSIBILITY
9 THE COMMISSION QUERIES THE ADMISSIBILITY OF THE ACTION . IT RECALLS THAT THE APPLICANT HAD , AT THE TIME OF HIS RECRUITMENT , CHALLENGED HIS CLASSIFICATION BY PRODUCING SPECIFIC ARGUMENTS , THEREBY DEMONSTRATING A SOUND UNDERSTANDING OF THE CRITERIA GOVERNING CLASSIFICATION ; THAT CHALLENGE HAD INDEED BEEN SUCCESSFUL , SINCE HE WAS FINALLY RECRUITED IN GRADE L/A 7 , STEP 1 , INSTEAD OF GRADE L/A 8 , STEP 2 , AS ORIGINALLY ANTICIPATED . IN THOSE CIRCUMSTANCES THE COMMISSION TAKES THE VIEW THAT THE ACTION , HAVING BEEN BROUGHT FIVE YEARS AFTER THE APPLICANT ' S RECRUITMENT AND RELATING AS IT DOES TO A QUESTION WHICH WAS DISCUSSED AND SETTLED AS LONG AGO AS 1977 , MUST BE REGARDED AS OUT OF TIME .
10 IN PRINCIPLE , THAT OBSERVATION BY THE COMMISSION IS JUSTIFIED . AN OFFICIAL CANNOT BE PERMITTED TO CHALLENGE THE CONDITIONS OF HIS INITIAL RECRUITMENT ONCE THAT RECRUITMENT HAS BECOME DEFINITIVE . A FORTIORI , HE MAY NOT RAISE RETROSPECTIVE CLAIMS RELATING TO HIS CLASSIFICATION AND , CONSEQUENTLY , TO HIS PAST AND FUTURE REMUNERATION .
11 HOWEVER , IN THIS PARTICULAR CASE SUCH CONSIDERATIONS DO NOT NECESSARILY RENDER THE ACTION INADMISSIBLE . IT IS CLEAR FROM THE BACKGROUND TO THE CASE THAT THE COMMISSION ' S ISSUANCE IN 1981 OF ITS DECISION OF 6 JUNE 1973 AMOUNTED TO A NEW EVENT OF SUCH A NATURE AS TO AFFORD GROUNDS FOR BONA FIDE REQUESTS FROM OFFICIALS TO HAVE THEIR CAREERS REVIEWED . IT IS , FURTHERMORE , WORTHY OF NOTE THAT WHEN THE COMMISSION RECEIVED A REQUEST FROM THE APPLICANT UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS IT TREATED IT AS ADMISSIBLE AND ADOPTED AN EXPRESS DECISION IN THE MATTER .
12 FOR THOSE REASONS , IT IS APPROPRIATE TO HOLD THE ACTION ADMISSIBLE AND TO CONSIDER THE SUBSTANCE OF THE CLAIM .
SUBSTANCE
13 THE APPLICANT POINTS OUT THAT , UNDER ARTICLE 5 ( 1 ) OF THE DECISION OF 6 JUNE 1973 , ADDITIONAL SENIORITY IS ACCORDED TO A CANDIDATE HAVING PROFESSIONAL EXPERIENCE WHICH EXCEEDS THAT TAKEN INTO ACCOUNT FOR DETERMINING HIS GRADE ON APPOINTMENT , AND THAT , ACCORDING TO THE TABLE ANNEXED TO THAT DECISION , EXPERIENCE AMOUNTING TO FIVE YEARS OR MORE CONFERS AN ENTITLEMENT TO THE MAXIMUM AWARD OF ADDITIONAL SENIORITY WHICH IS PERMITTED PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 32 OF THE STAFF REGULATIONS , NAMELY 48 MONTHS . HE EXPLAINS THAT , AT THE TIME OF RECRUITMENT , HE HAD ALMOST SEVEN YEARS ' EXPERIENCE WHICH WAS ' ' RELEVANT ' ' WITHIN THE MEANING OF PARAGRAPH 3 ( C ) OF ANNEX II TO THE CIRCULAR OF MARCH 1981 ; ON RECRUITMENT HE SHOULD THEREFORE HAVE BEEN PLACED DIRECTLY IN STEP 3 OF GRADE L/A 7 .
14 THE COMMISSION OPPOSES THAT APPROACH , ARGUING THAT THE PROVISIONS RELIED ON BY THE APPLICANT IN NO WAY SUGGEST THAT ALL PROFESSIONAL EXPERIENCE AT A LEVEL EQUIVALENT TO CATEGORY A WORK MAY BE TAKEN INTO ACCOUNT FOR THE PURPOSE OF DETERMINING STEP . IT POINTS OUT THAT , ACCORDING TO THE SECOND PARAGRAPH OF ARTICLE 32 OF THE STAFF REGULATIONS , THE EXPERIENCE IN QUESTION MUST BE SPECIFIC AND THAT , UNDER PARAGRAPH 3 ( C ) OF ANNEX II TO THE CIRCULAR , CONSIDERATION MAY BE GIVEN ONLY TO ' ' RELEVANT EXPERIENCE ' ' .
15 THE COMMISSION ACKNOWLEDGES THAT THE APPLICANT WAS ABLE TO DEMONSTRATE A CERTAIN AMOUNT OF EXPERIENCE AT THE TIME OF RECRUITMENT , BUT DENIES THAT SUCH EXPERIENCE MAY BE REGARDED AS SPECIFIC AND RELEVANT TO THE POST WITHIN THE MEANING OF ARTICLE 32 OF THE STAFF REGULATIONS , SINCE IT WAS A QUESTION OF RECRUITING A TRANSLATOR WHOSE FUNCTION WOULD , ACCORDING TO THE VACANCY NOTICE , BE TO TRANSLATE ALL TYPES OF TEXT FOR THE DEPARTMENTS OF THE COMMISSION . THE COMMISSION DOES NOT , HOWEVER , DISPUTE THAT THE APPLICANT HAD , IN THE COURSE OF HIS PREVIOUS EMPLOYMENT WITH A PRIVATE COMPANY , CARRIED OUT SOME TRANSLATION WORK ON A LIMITED NUMBER OF COMMUNITY TEXTS . IT EMPHASIZES THAT IT HAD ALREADY TAKEN THAT EXPERIENCE INTO ACCOUNT WHEN RECOGNIZING THAT HE HAD ONE YEAR ' S PROFESSSIONAL EXPERIENCE , THEREBY ENABLING HIM TO BE RECRUITED IN GRADE L/A 7 RATHER THAN GRADE L/A 8 . HOWEVER , IN THE ABSENDE OF SPECIFIC EXPERIENCE IN EXCESS OF THAT TAKEN INTO ACCOUNT FOR THE PURPOSE OF DEDERMINING HIS GRADE , THERE COULD BE NO QUESTION OF GRANTING THE APPLICANT ADDITIONAL SENIORITY WITHOUT CONTRAVENING ARTICLE 5 ( 1 ) OF THE DECISION OF 6 JUNE 1973 .
16 IN ORDER TO RESOLVE THIS DISPUTE , IT IS NECESSARY TO CONSIDER AT THE OUTSET THE NATURE AND LEGAL STATUS OF THE DECISION OF 6 JUNE 1973 AND OF THE CIRCULAR OF MARCH 1981 , IN RELATION TO THE STAFF REGULATIONS .
17 ACCORDING TO ITS PREAMBLE , THE DECISION WAS ADOPTED ON THE BASIS , IN PARTICULAR , OF ARTICLES 5 ( 3 ), 29 , 30 , 31 AND 32 OF THE STAFF REGULATIONS , WITH A VIEW TO ENSURING THAT IDENTICAL CONDITIONS OF RECRUITMENT AND CAREER PROSPECTS SHOULD BE ENJOYED BY ALL OFFICIALS IN THE SAME CATEGORY OR SERVICE AS FAR AS GRADING AND CLASSIFICATION IN STEP ON RECRUITMENT WERE CONCERNED .
18 ACCORDING TO INFORMATION SUPPLIED BY THE COMMISSION , THE DECISION WAS FIRST PUBLISHED IN 1977 IN THE ' ' STAFF COURIER ' ' , BUT APPARENTLY IN AN INCOMPLETE FORM . IT WAS REDISTRIBUTED IN THE ABOVE-MENTIONED CIRCULAR FROM THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION IN MARCH 1981 .
19 AS STATED ABOVE , THAT CIRCULAR CONTAINS , APART FROM THE TEXT OF THE DECISION AS SUCH AND THE TABLE REFERRED TO IN ARTICLE 5 , AN ANNEX BEARING THE NUMBER II AND HEADED ' ' PRACTICAL APPLICATION - GENERAL SURVEY ' ' . THAT ANNEX IS A DESCRIPTIVE DOCUMENT SUMMARIZING THE PRACTICE FOLLOWED BY THE ' ' GRADING COMMITTEE ' ' WHEN IMPLEMENTING THE DECISION .
20 IT FOLLOWS THAT , EVEN THOUGH THE DECISION AT ISSUE MAY NOT BE REGARDED AS A GENERAL IMPLEMENTING PROVISION WITHIN THE MEANING OF ARTICLE 110 OF THE STAFF REGULATIONS , IT CONSTITUTES AN INTERNAL DIRECTIVE . HOWEVER , AS THE COURT HELD IN ITS JUDGMENT OF 30 JANUARY 1974 ( CASE 148/73 LOUWAGE V COMMISSION ( 1974 ) ECR 81 ), SUCH AN INTERNAL DIRECTIVE MUST BE REGARDED AS A RULE OF CONDUCT , INDICATING THE PRACTICE TO BE FOLLOWED , WHICH THE ADMINISTRATION IMPOSES ON ITSELF AND FROM WHICH IT MAY NOT DEPART WITHOUT SPECIFYING THE REASONS WHICH HAVE LED IT TO DO SO , SINCE OTHERWISE THE PRINCIPLE OF EQUALITY OF TREATMENT WOULD BE INFRINGED .
21 IT SHOULD BE NOTED THAT IN THE PRESENT CASE THE COMMISSION HAS PLEADED NO SPECIAL CIRCUMSTANCE ALLOWING IT TO DEPART FROM THE RULES OF CONDUCT WHICH IT SET ITSELF . THAT POINT MUST NOT , HOWEVER , OBSCURE THE FACT THAT INTERNAL DIRECTIVES ADOPTED BY THE COMMUNITY INSTITUTIONS MAY NOT , IN ANY CIRCUMSTANCES , LEGALLY ESTABLISH RULES WHICH DEROGATE FROM THE STAFF REGULATIONS .
22 IT IS APPROPRIATE IN THIS CONTEXT TO RECALL THAT , UNDER THE SECOND PARAGRAPH OF ARTICLE 32 OF THE STAFF REGULATIONS , THE APPOINTING AUTHORITY MAY , ' ' TAKING ACCOUNT OF THE TRAINING AND SPECIAL EXPERIENCE FOR THE POST OF THE PERSON CONCERNED ' ' , ALLOW ADDITIONAL SENIORITY IN HIS GRADE .
23 ACCORDING TO ARTICLE 5 ( 1 ) OF THE DECISION OF 6 JUNE 1973 , ' ' IN CONSIDERATION OF A CANDIDATE ' S PROFESSIONAL EXPERIENCE WHICH EXCEEDS THE LENGTH OF THAT TAKEN INTO ACCOUNT FOR DETERMINING HIS GRADE OF APPOINTMENT , THE APPOINTING AUTHORITY SHALL , IN ACCORDANCE WITH THE ANNEXED TABLE , ALLOW ADDITIONAL SENIORITY . ' ' SUCH ADDITIONAL SENIORITY MAY BE GRANTED FOR EACH FULL 12-MONTH PERIOD OF EXPERIENCE , UP TO A MAXIMUM OF 48 MONTHS , OVER AND ABOVE THE YEAR ' S EXPERIENCE ALREADY REQUIRED FOR APPOINTMENT IN GRADE L/A 7 .
24 VIEWED IN THE LIGHT OF ARTICLE 32 OF THE STAFF REGULATIONS , THOSE INDICATIONS GIVEN BY THE DECISION OF 6 JUNE 1973 CAN APPLY ONLY TO EXPERIENCE WHICH IS SPECIFICALLY RELATED TO THE POST TO BE FILLED . THE COMMISSION IS THEREFORE RIGHT IN STATING IN ARTICLE 2 OF THE SAME DECISION , IN RESPECT OF A COMPARABLE SITUATION , THAT ' ' PROFESSIONAL EXPERIENCE ( SHALL BE ASSESSED ) WITH REGARD TO THE POST TO BE FILLED ' ' ; SIMILARLY , ANNEX II TO THE CIRCULAR OF MARCH 1981 STATES THAT IN PRACTICE CREDIT IS NOT GIVEN IN CAREER BRACKET L/A 7-L/A 6 ( TRANSLATOR ) EXCEPT FOR ' ' RELEVANT ' ' EXPERIENCE AND ON THE FURTHER CONDITION THAT IT IS OF A LEVEL EQUIVALENT TO CATEGORY A WORK , THAT IS TO SAY UNIVERSITY LEVEL .
25 ON THE OTHER HAND , ARTICLE 32 OF THE STAFF REGULATIONS WOULD BE INFRINGED BY ANY PRACTICE WHICH CONSISTED IN GIVING CREDIT FOR PREVIOUS EXPERIENCE WHICH WAS NOT SPECIFICALLY RELATED TO THE POST TO BE FILLED , AS SEEMS TO BE IMPLIED BY THE WORDS ' ' ( EXPERIENCE ) AS TRANSLATOR , ECONOMIST , LAWYER , ETC . ' ' IN PARAGRAPH 3 ( C ) OF ANNEX II .
26 THUS THE APPOINTING AUTHORITY MAY NOT GIVE CREDIT FOR PREVIOUS EXPERIENCE EXCEPT IN CASES WHERE SUCH EXPERIENCE MAY BE RECOGNIZED TO BE OF AN APPROPRIATE LEVEL AND OF A NATURE SPECIFICALLY RELEVANT TO THE POST IN QUESTION . IN VIEW OF THE GREAT DIVERSITY OF EXPERIENCE OFFERED BY CANDIDATES FOR EMPLOYMENT WITH THE EUROPEAN INSTITUTIONS , THE COMPETENT AUTHORITY MUST BE ALLOWED A DISCRETIONARY POWER COVERING ALL ASPECTS OF POTENTIAL IMPORTANCE FOR THE RECOGNITION OF PREVIOUS EXPERIENCE , BOTH AS REGARDS THE NATURE AND DURATION OF SUCH EXPERIENCE AND AS REGARDS THE EXTENT TO WHICH IT MATCHES THE REQUIREMENTS OF THE POST TO BE FILLED .
27 IN THE PRESENT CASE IT IS CLEAR THAT THE COMMISSION , ACTING ON THE ADVICE OF THE GRADING COMMITTEE , ASSESSED THE APPLICANT ' S PREVIOUS EXPERIENCE ON TWO OCCASIONS , NAMELY WHEN THE FIRST COMPLAINT CONCERNING THE CLASSIFICATION IN GRADE WAS LODGED , AND WHEN THE SECOND REQUEST WAS MADE FOLLOWING THE REDISTRIBUTION OF THE DECISION OF 6 JUNE 1973 . THE EVIDENCE ADDUCED BY THE APPLICANT IN THE COURSE OF THE PRESENT PROCEEDINGS HAS DISCLOSED NOTHING TO SUGGEST THAT THE COMMISSION , IN REFUSING TO RECOGNIZE SPECIFIC EXPERIENCE IN EXCESS OF THE YEAR REQUIRED FOR ADMISSION TO GRADE L/A 7 , COMMITTED A MANIFEST ERROR OR WAS GUIDED BY FACTORS INCONSISTENT WITH THE OBJECTIVITY WHICH IS CALLED FOR IN SUCH CIRCUMSTANCES . IT IS IN FACT APPARENT THAT THE PREVIOUS OCCUPATIONS OF THE APPLICANT , AS DESCRIBED BY HIM AT THE TIME OF HIS RECRUITMENT , HAD NO MORE THAN A PARTIAL AND REMOTE BEARING ON THE DUTIES WHICH HE LATER TOOK UP IN THE SERVICE OF THE COMMUNITY , AS A TRANSLATOR ATTACHED TO A GENERAL DEPARTMENT .
28 THEREFORE THE APPLICATION MUST BE DISMISSED .
COSTS
29 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY MUST BE ORDERED TO PAY THE COSTS .
30 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , THE INSTITUTIONS MUST BEAR THEIR OWN COSTS IN PROCEEDINGS COMMENCED BY EMPLOYEES OF THE COMMUNITIES .
ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2.ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .
