Avis juridique important

Judgment of the Court of First Instance (Fourth Chamber) of 11 July 1991. - Detlef von Hoessle v Court of Auditors of the European Communities. - Officials - Classification in step - Professional experience. - Case T-19/90. European Court reports 1991 Page II-00615

Summary Parties Grounds Decision on costs Operative part

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1. Officials - Application to the Court - Prior complaint through administrative channels - Time-limit - Matter of public policy

(Staff Regulations of Officials, Arts 90 and 91)

2. Officials - Application to the Court - Object - Instruction addressed to the administration - Inadmissibility

(Staff Regulations of Officials, Art. 91)

(Staff Regulations of Officials, Arts 90 and 91; Rules of Procedure, Art. 113)

4. Officials - Recruitment - Classification in step - Additional seniority in grade - Taking account of professional experience - Discretion of the administration - Exclusion of a period of professional experience taken into consideration for the purposes of the appointment of the person concerned

(Staff Regulations of Officials, second para. of Art. 32)

1. The time-limits laid down in Articles 90 and 91 of the Staff Regulations for lodging complaints and appeals are intended to ensure certainty in legal relationships. They are therefore a matter of public policy and cannot be left to the discretion of the parties or the Court. The fact that the defendant institution did not formally raise, in the proceedings before the Court, an objection of inadmissibility on the ground that the action is barred because the complaint was out of time does not dispense the Court from verifying whether, on the facts before it the said time-limits have been complied with.

2. The question of admissibility regarding the consistence between the prior complaint through administrative channels and the application to the Court is a matter of public policy in so far as it relates to the legality of the administrative procedure, which constitutes an essential procedural requirement. The examination of this question by the Court of its own motion is justified, in particular, in the light of the very purpose of the administrative procedure, which is to permit an amicable settlement of the differences which have arisen between officials or servants and the administration.

3. A plea that was not raised in the complaint and mentioned for the first time only in the written procedure before the Court must be rejected as inadmissible where the administrative complaint not only does not refer to that plea but contains nothing from which the defendant institution, even endeavouring to interpret the complaint with an open mind, could have inferred that the applicant wished to rely on the plea at issue.

4. With a view to granting additional seniority and grade when an official is recruited the appointing authority enjoys, under the second paragraph of Article 32 of the Staff Regulations, a discretion as regards 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 corresponds to the requirements of the post to be filled.

The appointing authority does not exceed the limits of its discretion by taking into consideration a particular period of professional experience when appointing a candidate to a vacant post and yet refusing to take the same period into account for granting additional seniority in grade, if it considers that that experience is not sufficiently specific with respect to the requirements of the post to be filled.

In Case T-19/90,

Detlef von Hoessle, an official of the Court of Auditors of the European Communities, residing in Luxembourg, represented by J.-P. Noesen, of the Luxembourg Bar, with an address for service in Luxembourg at the latter' s Chambers, 18 Rue des Glacis,

applicant,

v

Court of Auditors of the European Communities, represented by Michael Becker and Jean-Marie Stenier, members of its Legal Service, acting as Agents, with an address for service in Luxembourg at 12 Rue Alcide de Gasperi,

defendant,

APPLICATION for reclassification of the applicant from Step 1 to Step 3 of Grade A 7, with effect from 1 January 1989,

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 following the hearing on 21 March 1991, gives the following

Judgment

Facts giving rise to the proceedings

1 The applicant, Mr Detlef von Hoessle, holds a diploma of "Finanzwirt" (a diploma in financial management issued by a higher technical college). He worked for the Bavarian tax authority in Germany before being seconded, on 1 April 1980, and later transferred, on 1 November 1980, to the Bayerischer Oberster Rechnungshof (Bavarian Higher Court of Auditors, hereinafter referred to as "the BORH"), where he was employed, from 2 February 1981, as "Rechnungsrat", and from 17 February 1984, as "Oberrechnungsrat". He left the BORH on 31 October 1985 with the grade of "Oberrechnungsrat", which is the highest grade of the "gehobener Dienst" (upper middle category).

2 After passing the tests in Competition No CC1982, the applicant entered the service of the Court of Auditors of the European Communities ("the Court of Auditors") on 1 November 1985. By decision of the Court of Auditors of 15 October 1985 he was classified in step 3 of Grade B 3 with effect from 1 November 1985. He was established with effect from 1 August 1986.

3 Subsequently, the applicant passed the tests in Open Competition EUR/A/17, organized by the Commission and the Court of Auditors for the purpose of constituting a reserve for the recruitment of administrators. In the Notice of Competition, published on 25 February 1988 (Official Journal C 54, p. 13), the "Nature of Duties" was described in Title I as follows:

"Administrative, advisory and supervisory duties, following general guidelines, in the field of Community audit activity.

Duties will include one or more of the tasks listed below by way of example (the list is not exhaustive):

- control and verification of Community accounts and management both from documents and on the spot,

- systems analysis, and the use of financial and accounting techniques,

- cost/benefit analysis, financial calculations, economic and legal analysis, and the use of statistical and sampling techniques,

- use of data-processing techniques and databases,

- ex-post assessment of the Community' s financial operations."

At paragraph 2 of Title II(B) it was stated that candidates must:

"(a) have completed a course of university education and obtained a degree or diploma ...

(b) have at least two years' experience since obtaining the degree or diploma referred to at (a) commensurate with the duties described at I above ...".

However under Title II(C) it was stated: "The competition is open to candidates who do not satisfy the special conditions at B.2(b) but who, by 8 April 1988, will have been serving as an official or other servant of the European Communities in category B for at least two years and have completed a course of university education and obtained a final degree or diploma".

4 On 19 April 1989, the Court of Auditors published Vacancy Notice No CC/A/7/89, concerning five posts of Administrator. The "Qualifications" required were described as follows:

"- University level education with a recognized final degree or diploma, or equivalent professional experience;

- additional professional experience of at least one year in work related to the duties to be performed."

5 Following publication of the vacancy notice, the applicant was appointed as an administrator from 1 June 1989, by a decision of the defendant of 19 May 1989. He was classified in step 1 of Grade A 7, on the basis of Article 46 of the Staff Regulations of Officials of the European Communities ("the Staff Regulations").

6 On 10 July 1989, the President of the Court of Auditors published Staff Notice No 32-89 on the classification of officials passing from one category to another or from one career bracket to another following an open competition ("Staff Notice No 32-89"), in which, first he cancelled a preceding Staff Notice No 15-89 of 19 April 1989 on the same subject and, secondly, decided that the classification of successful officials in an open competition for a higher category or grade would be established on the basis of Article 32 or Article 46 of the Staff Regulations according to whichever classification would be more favourable.

7 After Staff Notice No 32-89 had been circulated, the applicant, by letter of 18 July 1989, requested from the defendant a reclassification from Step 1 to Step 3 of Grade A 7, on the strength of his work as an auditor at the BORH from 1 April 1980 to 31 October 1985, which he considered had provided him with experience which was equivalent to that of a Category A official at the Court of Auditors.

8 By letter addressed on 4 September 1989 to the defendant, the applicant supplemented his request by furnishing a certificate issued by the BORH on 1 August 1989 in which his duties and activities at that institution were described as follows:

"- preparation of audits (for example, drawing up of audit criteria and questionnaires, preparatory analytical research, selection of documents for audit);

- carrying out of audits independently, or, in the case of larger audits, as part of a team of auditors having the same status (in particular audits of documents at the seat of the BORH, or on the spot, profitability control, assessment of cost benefit analyses). These audits presuppose that the auditors undertaking them have, in each case, knowledge and experience in particular in the fields of business economics, budget law, data-processing and analysis of staff requirements.

- Drafting reports and written opinions on technical problems for final signature by the members, and drawing up drafts of annual reports."

9 By letter of 13 September 1989 the defendant rejected the applicant' s request on the ground that it was apparent from the BORH' s certificate that the activities he had carried out at that institution were those appropriate to the "gehobener Dienst" and corresponded to the duties of a category B official of the Court of Auditors.

10 By letter of 15 September 1989 the applicant protested against the decision rejecting his request. He complained that the institution had not undertaken a proper comparison between the activities of an auditor with the BORH and those of an auditor at the Court of Auditors and that it had not taken account of the different structure of the two organizations.

11 By memorandum of 15 December 1989, which was received by the defendant on the same day, the applicant converted his letter of 15 September 1989 into a formal complaint for the purposes of Article 90(2) of the Staff Regulations.

12 By memorandum of 17 January 1990 the complaint was rejected by the defendant on the ground that it was apparent from the documents submitted by the applicant that the activities of "Rechnungsrat" and "Oberrechnungsrat" which he had carried out at the BORH corresponded to the posts of auditor of the "gehobener Dienst" and that auditors in a higher grade were classified as belonging to the "hoeherer Dienst" (higher category). Accordingly, the administration was entitled to take the view that the experience which he had acquired at the BORH corresponded to that of an assistant auditor at the Court of Auditors, that is to say a category B official.

13 On 9 February 1990 the applicant submitted a new request, clarified in a memorandum dated 13 March 1990, in which he acknowledged that the pre-litigation procedure was closed but asked for his case to be reconsidered. His request was rejected by the defendant by letters of 12 March and 21 March 1990.

Procedure

14 Those were the circumstances in which the applicant, by application lodged at the Registry of the Court of First Instance on 13 April 1990, brought the present action for reclassification from Step 1 to Step 3 of Grade A 7.

15 Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure without any preparatory enquiry.

16 However, by letter of 7 December 1990 from its Registrar the Court requested both parties to reply in writing to two questions concerning the nature and admissibility of the proceedings.

17 By letter lodged at the Court Registry on 18 January 1991 the applicant replied to the questions put by the Court. By letter lodged at the Registry on 4 February 1991 the defendant replied to the same questions.

18 The oral procedure took place on 21 March 1991. The parties' representatives presented oral argument and answered questions put by the Court.

19 The applicant claims that the Court should:

(a) declare that his training and professional experience between 1 April 1980 and 31 October 1985 should be recognized as entitling him to additional seniority in his grade in accordance with the second paragraph of Article 32 of the Staff Regulations;

(b) order the defendant to classify the applicant in Step 3 of Grade A 7, with effect from 1 June 1989;

(c) declare that by taking account of occupational experience in comparable cases but refusing to accede to the applicant' s requests, the defendant has infringed the principle of equal treatment contained in Article 5(3) of the Staff Regulations;

(d) take formal notice that he offers to provide evidence, in so far as necessary, that: "the task of auditor of the BORH is comparable to that of an A 6/7 auditor at the Court of Auditors of the European Communities, as regards both the requirements as to professional abilities and the nature of the work";

(e) take formal notice that he is asking for an order that the personal files of David Ramsay and David Richardson, or at least the parts of those files relevant to resolving the present proceedings, be transmitted to the Court in order to establish which aspects of the careers of those officials led the defendant to give effect to their request for reclassification in step and to determine whether the applications of those criteria to his case by analogy would confer a right to additional seniority in grade;

(f) order the defendant to pay the costs.

20 The defendant contends that the Court should:

- dismiss the application as inadmissible or at least as unfounded;

- order the applicant to pay the costs.

Admissibility

Late submission of the complaint

21 The defendant has not formally raised an objection of inadmissibility on this subject, but in its replies to the questions put by the Court contended that the lateness of Mr von Hoessle' s complaint could lead to the action being inadmissible in its entirety. In that connection, the defendant maintained that it had replied as early as 13 September 1990 to the applicant' s request to be reclassified, whereas the applicant submitted his complaint only on 15 December 1990, after the period of three months prescribed in Article 90(2) of the Staff Regulations had expired.

22 At the hearing, the applicant' s representative disputed that Mr von Hoessle had received the reply dated 13 September 1990 on the same day. He maintained that it had only been received on 15 September 1990, so that the time-limit of three months laid down in the Staff Regulations had been complied with.

24 Under the Rules of Procedure the Court of First Instance may at any time of its own motion consider whether there exists any absolute bar to proceeding with a case. It is therefore incumbent on the Court to verify whether in the present case the time-limits for submitting a complaint and bringing an action have been complied with.

The nature of the application to the Court

26 In its reply to the question put by the Court concerning the nature of the application to the Court the defendant explained that it had refrained from raising an objection of inadmissibility in its pleadings in order to permit the applicant to state his pleas in law on the substance of the case. However, as the Court had requested it to make known its position on this point, it has contended that the application is inadmissible on the ground that, following a line of decisions of the Court of Justice, the Court of First Instance has no jurisdiction, in proceedings for judicial review, to address to the administration orders such as those sought by the applicant. The defendant added that this must be the case a fortiori in this instance, the applicant has not even sought the annulment of the decisions which he is contesting.

27 In his reply to the same question the applicant maintained that his application must be regarded as an application for annulment. His requests for reclassification and for the principle of equal treatment to be applied for his benefit could only be considered in conjunction with an annulment of the contested decisions. At the hearing the applicant' s representative stated that the application for annulment related to the decision by the Secretary General of the Court of Auditors rejecting the applicant' s request, received on 15 September 1989, and to the decision of 17 January 1990 rejecting his complaint.

28 Although the defendant' s objection of inadmissibility was raised at a late stage, under the Rules of Procedure it is incumbent on the Court to examine it of its own motion because it concerns the jurisdiction of the Court and therefore raises considerations of public policy (see the judgment of the Court of Justice in Case C-31/69 Commission v Italy [1970] ECR 25, paragraph 8).

The lack of consistency between the complaint and the application

31 In its reply to the questions put by the Court the defendant contended that the second plea put forward in the application, alleging a discriminatory attitude on its part towards the applicant, was inadmissible on the ground that that plea was based on a reason entirely distinct from the sole plea raised during the pre-litigation procedure which had been based on an alleged breach of Article 32 of the Staff Regulations.

32 At the hearing, the applicant' s representative stated that although not mentioned expressly, the idea of a breach of the principle of non-discrimination was none the less to be found in the complaint.

34 In the present case, it should be noted that the second plea put forward during the written procedure before the Court was not raised during the pre-litigation procedure, which closed with the defendant' s decision of 17 January 1990, rejecting the applicant' s complaint of 15 December 1989. According to established case-law, "an official may not submit to the Court conclusions with a subject-matter other than those raised in the complaint or put forward heads of claim based on matters other than those relied on in the complaint. The submissions and arguments made to the Court in support of those heads of claim need not necessarily appear in the complaint, but must be closely linked to it" (see the judgments in Case C-52/85 Rihoux and Others v Commission [1986] ECR 1555, paragraph 13, Case C-242/85 Geist v Commission [1987] ECR 2181, paragraph 9, Case C-224/87 Koutchoumoff v Commission [1989] ECR 99, paragraph 10, and Case C-133/88 Casto del Amo Martinez v European Parliament, cited above, paragraph 10).

35 In that regard, it may be observed that in the present case the applicant not only made no reference in his complaint through administrative channels to his second plea in law but, in the words of paragraph 13 of the judgment in Case C-133/88, cited above, he has also "failed to put forward any argument from which the defendant institution, even endeavouring to interpret the complaint with an open mind", could have inferred that he wished to plead a breach of the principle of equal treatment.

36 Under those circumstances, the second plea in law must be declared inadmissible.

Substance of the case

37 The applicant claims, first, that, according to Staff Notice No 32-89, his grading should have been established on the basis of the provisions of Article 32 of the Staff Regulations, which were more favourable to him than those of Article 46 which was the basis for his grading on 1 June 1989.

38 According to the applicant, the defendant misinterpreted the second paragraph of Article 32 of the Staff Regulations and applied it wrongly. In that regard, the applicant claims that the defendant refused to recognize his training and the professional experience which he acquired at the BORH from 1 April 1980 to 31 October 1985 and therefore refused to give him the benefit of additional seniority in grade.

39 The applicant does not accept that an audit officer of the BORH can be equiparated to a category B official of the Court of Auditors, a view which the defendant adopted, according to the applicant, in the abstract and without taking account of his specific professional experience.

40 He maintains that the hierarchical structure of the Court of Auditors is completely different from that of the German "Landesrechnungshoefe" (courts of auditors of the Laender). As it is not possible to compare careers within the two organizations an assessment of the professional experience of the persons concerned can be undertaken only by comparing their respective powers and duties.

41 The applicant states that there is broad equivalence, both as regards the content and the required knowledge and experience between the duties of a Grade A 7/6 administrator of the Court of Auditors, as described in Notice of Competition No EUR/A/17 (see paragraph 3 above) and the duties of an auditor of the BORH, as described in the certificate issued by that body on 1 August 1989 (see paragraph 8 above). The defendant was in the applicant' s opinion wrong, therefore, in treating the duties of an auditor of the BORH as similar to those of a category B official, and not a category A official, of the Community.

42 Referring to the judgment of the Court of First Instance in Case T-50/89 Sparr v Commission [1990] ECR II-207 further argues that professional experience has to be assessed in the light of the duties attaching to the post to be filled and not on the basis of national law.

43 The applicant refers, lastly, to the terms of Vacancy Notice No CC/A/7/89, subsequent to which he was appointed as a category Grade A 7 official (see paragraph 4 above). He maintains that he was not able to acquire the "professional experience of at least one year in work related to the duties to be performed" required by that notice, which was of necessity that of a Grade A official, while working as a Grade B official of the Court of Auditors. It must therefore be concluded that the defendant itself took account of his duties with the BORH, by way of required professional experience, when it appointed him to be a Grade A official.

44 The defendant admits that it classified the applicant in Step 1 of Grade A 7 from 1 June 1989 in accordance with Article 46 of the Staff Regulations. It states that, although the applicant' s file was re-examined at the pre-litigation stage on the basis of the provisions of Article 32 of the Staff Regulations, in accordance with Staff Notice No 32-89, it has not been possible to allocate him a different step, given that he has already been accorded the most favourable classification possible.

45 According to the defendant, there is nothing to justify the conclusion that, before he entered the service of the European Communities, the applicant performed duties which could be equated to those of a Grade A Community official. Neither the certificate provided by the BORH on 1 August 1989 nor the case-law cited by the applicant in support of his arguments can upset that finding.

46 In order to refute the applicant' s argument that by appointing him as a Grade A 7 official subsequent to Vacancy Notice No CC/A/7/89 it had itself recognized his duties at the BORH as being equivalent to those of a Grade A Community official the defendant refers to the Notice of Competition No EUR/A/17 (see paragraph 3 above). The defendant maintains that, in order to admit the applicant to the competition, it applied to him the special conditions set out in the second paragraph Title II(C) of the Notice, according to which the competition was open to candidates who did not satisfy certain other conditions appearing in Title B but who had been serving as an official of the European Communities "in category B for at least two years and [had] completed a course of university education ... ".

47 The Court of First Instance considers that it should be recalled in limine that under the second paragraph of Article 32 of the Staff Regulations, which both parties agree applies to the present case, the appointing authority may, when it appoints a newly recruited official, take account of the training and special experience for the post of the person concerned and allow additional seniority in his grade.

48 In that regard, it should be noted that it is established case-law (see in particular the judgments of the Court of Justice in Case C-280/85 Mouzourakis v European Parliament [1987] ECR 589, Case C-190/82 Blomefield v Commission [1983] ECR 3981 and Case C-17/83 Angelidis v Commission [1984] ECR 2907, and the judgments of the Court of First Instance in Joined Cases T-18/89 and T-24/89 Tagaras v Court of Justice [1991] ECR II-53, paragraph 65, Case T-2/90 Ferreira de Freitas v Commission [1991] ECR II-103, paragraph 56 and Case T-109/89 André v Commission [1991] ECR II-139, paragraph 32) that the appointing authority must be recognized as having discretion as regards 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 meets the requirements of the post to be filled.

49 Accordingly, in the present case, the Court can annul the contested decisions adopted by the defendant only if it appears that by refusing to grant him additional seniority the defendant has manifestly disregarded Mr von Hoessle' s professional experience. That means assessing whether the applicant, when he worked for the BORH, in fact performed duties that could be equated to those of a Grade A official of the Court of Auditors, regardless of the official title or status conferred on him within the BORH under German law. It must be observed, none the less, that the Court cannot substitute its interpretation for that of the defendant, except where it appears that the defendant has committed a manifest error.

50 The Court' s examination of Mr von Hoessle' s personal file has revealed that there is no evidence to establish that when it appointed Mr von Hoessle the defendant failed in its duty to assess his previous experience. The Court has found nothing to show that the appointing authority manifestly made a mistake by considering that the professional experience acquired by the applicant at the BORH could be equated to the duties of a Grade B Community official and not those of a Grade A Community official. Neither is there any evidence that in making its assessment the appointing authority limited itself solely to the applicant' s title at the BORH without taking account of the duties which he actually performed there.

51 Having regard to the discretion allowed to the appointing authority on the matter, that assessment may therefore not be considered to be unreasonable.

52 Furthermore, as regards the applicant' s argument based on the terms of Vacancy Notice No CC/A/7/89 and his assertion that the administration itself recognized his duties at the BORH as being equivalent to those of a Grade A Community official, the Court observes that the Notice, under the heading "Qualifications", requires additional professional experience of at least one year "in work related" to the duties to be performed but does not expressly require that the professional experience was that of a Grade A Community official. Accordingly, the applicant is not entitled to conclude that by appointing him as a Grade A 7 administrator subsequent to Vacancy Notice No CC/A/7/89 the administration necessarily recognized the professional experience which he acquired at the BORH as corresponding to that of a Grade A Community official.

53 Moreover, even supposing that the professional experience required by the said vacancy notice had been that of a Grade A official, that would not mean as such that the appointing authority was therefore obliged to confer additional seniority on the applicant, as is permitted by the second paragraph of Article 32 of the Staff Regulations. The very wide discretion conferred on the appointing authority under that article allows it to take a particular period of professional experience into consideration when recruiting a candidate to a post and yet to refuse to take the same period of professional experience into consideration for granting additional seniority in grade, if it considers that the experience is not sufficiently specific as regards its nature, its length, or the extent to which itt corresponds to the requirements of the post to be filled.

54 It follows from those considerations that the argument based on the terms of Vacancy Notice No CC/A/7/89 must also be rejected.

55 In those circumstances, the application must be dismissed.

Costs

56 The applicant argued that his requests were treated with such indifference and negligence that he was obliged to bring proceedings before the Court in order to protect his fundamental right to a fair hearing and that all his efforts to avoid litigation were repelled. He therefore claims that the defendant should be ordered to pay the costs.

57 On the other hand, the defendant contends that the costs should be borne entirely by the applicant, since the defendant stated its legal point of view in detail on many occasions to the applicant, and in particular stated that the documents which he had produced had merely confirmed the defendant' s own view.

58 Under the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party' s pleadings. However, in proceedings between the Communities and their servants the institutions are to bear their own costs.

59 In the present case, the Court considers that there is no reason for departing from the principles laid down in those provisions, since neither of the parties has succeeded in establishing that their allegations in that regard are well founded or in establishing facts which could justify departing from the Rules governing the burden of costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

hereby:

1) Dismisses the application;

2) Orders the parties to bear their own costs.