Euridiki Samara v European Commission (266/83)

1. Facts and procedure

Euridiki Samara, who is a Greek national and who was a successful candidate in an open competition held by the Council of the European Communities, was appointed by a decision of 3 December 1981 a probationary official in Grade C 5, Step 3. By a decision of 22 December 1981 she was transferred to the Commission in Luxembourg, still as a probationary official in Grade C 5, Step 3. She was established in her post as from 1 June 1982 and towards the end of that year she obtained an appointment in Grade C 3, Step 1, following an open competition in which she was placed first.The candidates who were placed second and third in that competition came from outside the institutions. They were appointed, on the basis of their experience, respectively to Grade C 3, Step 2, and Grade C 3, Step 3. Miss Samara took the view that her experience of 17 years was considerably greater than that of the other two candidates and she submitted a request to the appointing authority on 26 January 1983 asking that her classification should be reconsidered and all her relevant experience taken into account. By a decision of 16 February 1983 that request was rejected on the ground that Miss Samara's classification in Grade C 3, Step 1, was a correct application of Article 46 of the Staff Regulations in view of the fact that she had been an established official in Grade C 5 prior to her success in the competition.On 26 April 1983 Miss Samara submitted to the Commission a complaint pursuant to Article 90 (2) of the Staff Regulations. That complaint was rejected by a decision of 5 August 1983 which was communicated to her on 13 September following.By an application registered at the Court on 28 November 1983 the applicant brought this action against the decision of 5 August 1983 rejecting her complaint.Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry.

2. Conclusions of the parties

The applicant claims that the Court should:(1) Annul the decision rejecting her complaint;(2) Declare that she is to be regarded as having been recruited pursuant to Articles 29 to 32 of the Staff Regulations and that accordingly Article 46 of the Staff Regulations is not applicable to her case;(3) Refer the case back to the appointing authority so that it may comply with the judgment to be given;(4) Order the Commission to pay the costs.The defendant claims that the Court should:(1) Dismiss the action as unfounded;(2) Order the applicant to pay the costs.

3. Submissions and arguments of the parties

The applicant considers that in view of her experience she. ought to have been classified on her appointment in 1982 in Grade C 3, Step 3, by virtue of the second paragraph of Article 32 of the Staff Regulations. Against the contested decision she advances four submissions: (i) infringement of Articles 32, 45 and 46 of the Staff Regulations, (ii) breach of the principle of equal treatment, (iii) breach of the principle of good administration, and (iv) infringement of Article 5 (3) of the Staff Regulations.In the Commission's view, all those submissions are ill-founded.The submission based on the infringement of Articles 32, 45 and 46 of the Staff RegulationsAccording to the applicant, her appointment in Grade C 3, Step 1, following an open competition, constitutes a recruitment within the meaning of Article 32 of the Staff Regulations and cannot be regarded as a promotion within the meaning of Articles 45 and 46 of the Staff Regulations. In support of that view she notes in the first place that she could not have been elevated from C 5 to C 3 by promotion in view of the fact that an official may be promoted only by a single grade and that, at the time, she did not have the seniority required under Article 45 to be promoted. Furthermore, Article 46 applies only to officials appointed to a higher grade; it does not concern officials who, following an open competition, are appointed to posts which are two or more grades higher. In that regard, the applicant then refers to the opinion of Mr Advocate General Reischl in Case 176/83 (Van Belle v Council, [1974] ECR 1361) in which he attributed a broad meaning to the concept of ‘recruitment’ :‘... the concept “recruitment” must in fact not be understood in the narrow sense of appointment to the service, that is to say in the sense of external appointment. Rather, it is a general concept which, understood correctly, embraces all possible forms of appointment to posts.’In the applicant's view, the uncertainty and inconvenience involved in an open competition and the fact that a successful candidate in such a competition is chosen by a selection board in accordance with the rules of Annex III to the Staff Regulations constitute additional reasons for considering that she cannot be treated in the same way as an official who has been promoted.The Commission contends, on the other hand, that the applicant's appointment in Grade C 3 cannot be regarded as recruitment. Since 1 December 1981 the applicant has had a legal relationship with the Commission falling within one of the categories of administrative status provided for in the Staff Regulations. Any subsequent alteration in that relationship, in particular an improvement in her administrative status, cannot be regarded as a recruitment, since Articles 31 and 32 of the Staff Regulations are applicable only once in the course of an official's career.The Commission then states that under Articles 45 and 46 of the Staff Regulations it is possible for the applicant to be appointed to a higher grade (and not necessarily to the next higher grade) following her success in an open competition. In the first place, those provisions do not exclude promotion by decision of the appointing authority following the success of an official in an open competition, which should in principle constitute a factor in considering his merits pursuant to the second sentence of the first subparagraph of Article 45 (1). Secondly, those provisions, and in particular the first paragraph of Article 45, refer expressly to the possibility that a promotion may lead to appointment to a higher grade.The Commission states that there are two types of promotion: on the one hand, ‘promotion stricto sensu’ by virtue of Article 45 (1), which is promotion to the next higher grade in the category of the official concerned, and, on the other, ‘promotion lato sensu’ within the meaning of Articles 45 and 46 of the Staff Regulations, which is promotion to a higher grade following success in an open competition.The Commission submits finally that the applicant cannot rely on the opinion of Mr Advocate General Reischl in Case 176/83. The legal question in that case was whether the special procedure laid down in Article 29 (2) of the Staff Regulations was applicable to candidates who were already officials. It was in that context that Mr Advocate General Reischl attributed a broad meaning to the concept of ‘recruitment’.In her reply, the applicant contends that the distinction between promotion stricto sensu and promotion latu sensu, as advanced by the Commission, finds no support in the Staff Regulations, which refer to only one type of promotion, namely that under Article 45. It is not possible to be promoted two grades.In its rejoinder, the Commission contends that in regarding the applicant as having been promoted, it was applying correctly the provisions in question, in particular Article 46, which applies to just such a case as that of the applicant, who following an open competition, was appointed not to the next higher grade but to a higher grade.The submission based on breach of the principle of equal treatmentAccording to the applicant, all candidates, whether external or internal, in an open competition must be treated in the same way for the purposes of their classification. In this instance two external candidates whose professional experience was less than the applicant's obtained a better classification. It would be absurd to treat a candidate who has already worked in a Community institution less favourably and to favour persons who have not yet contributed to the attainment of the Community's objectives.In the Commission's view, the principle of equal treatment is not relevant. That principle must be applied in relation to officials in Category C who entered the service at the same time as the applicant and not in relation to the two external candidates who took part in the same competition. Clearly the principle of equal treatment requires that all the candidates in a competition are subject to the same conditions as regards the tests and selection. The classification of the successful candidates in a competition is, however, governed by other rules. By taking part in a competition the applicant did not cease to be a Commission official. Therefore her appointment to a higher grade fell within the scope of Article 46 of the Staff Regulations, whilst the appointment of the other successful candidates in the competition, who came from outside the institutions, fell within the scope of Article 32.The submission based on breach of the principle of good administrationAccording to the applicant, there is in this case a breach of the principle of good administration inasmuch as the Commission did not take into consideration all the factors capable of leading to a reasonable decision. In order to effect a fair classification the Commission ought to have taken into account the experience of all the candidates concerned, including the applicant.The Commission concedes that the principle advanced by the applicant certainly requires that all the factors on the basis of which its administration may reach reasonable decisions must be taken into account but adds that they must be taken into account in accordance with the rules of law applicable in the particular case. In the applicant's case those rules, in particular Article 46 of the Staff Regulations, make it impossible to take her previous experience into consideration for the purposes of her classification.The submission based on the infringement of Articles 5 (3) of the Staff RegulationsThe applicant points out that according to Article 5 (3) of the Staff Regulations identical conditions of recruitment and career development must apply to officials belonging to the same category or the same service. That is a fundamental provision which cannot be overridden by another provision of the Staff Regulations, such as Article 46, which, if applied to the applicant's case, would not guarantee her identical career conditions to those of the other two candidates who took part in the same competition.According to the Commission, a distinction between provisions which are fundamental and those which are not does not contribute to a solution of the problem raised in these proceedings. Rather, the question is whether the applicant's classification was in fact consistent with the principle of equal treatment. The reply to that question is affirmative, as the Commission has already explained in its observations regarding the applicant's second submission.

4. Oral procedure

At the sitting of 25 October 1984 the parties presented oral argument.The Advocate General delivered his opinion at the sitting on 29 November 1984.

Costs