1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 14 JANUARY 1981 , CALVIN E . WILLIAMS , AN OFFICIAL OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION SEEKING : FIRST , A DECLARATION BY THE COURT OF JUSTICE THAT THE CLASSIFICATION CRITERIA APPLIED BY THE DEFENDANT ARE DISCRIMINATORY ; SECONDLY A DECLARATION THAT THE DEFENDANT MUST ASSURE THE APPLICANT OF A CLASSIFICATION WHICH IS AT LEAST COMPARABLE WITH THAT OF HIS COLLEAGUES OF ABOUT THE SAME AGE , WHO HAVE UNIVERSITY QUALIFICATIONS OF THE SAME LEVEL AND THE SAME EXPERIENCE , THE NEW CLASSIFICATION TO TAKE EFFECT FROM THE DATE OF COMMENCEMENT OF THIS ACTION ; THIRDLY , ANNULMENT OF THE DECISION REJECTING THE APPLICANT ' S COMPLAINT ; AND FOURTHLY , COMPENSATION FOR THE DAMAGE WHICH HE HAS SUFFERED AS A RESULT OF THE ERROR ON THE PART OF THE COURT OF AUDITORS WHICH HE ESTIMATES AF BFR 1 080 000 , PLUS INTEREST AT THE RATE OF 6 % FROM THE DATE ON WHICH THE ACTION WAS BROUGHT .
BACKGROUND TO THE DISPUTE
2 ON 16 DECEMBER 1976 THE APPLICANT WAS APPOINTED BY THE COUNCIL AS A PROBATIONARY OFFICIAL OF THE AUDIT BOARD IN GRADE A 7 AND WAS ESTABLISHED IN THAT GRADE BY DECISION OF 14 JUNE 1977 .
3 WHEN THE COURT OF AUDITORS WAS BEING SET UP , THE APPLICANT PUT HIS NAME FORWARD AND WAS TRANSFERRED TO IT BY A DECISION OF 18 APRIL 1978 OF THE APPOINTING AUTHORITY OF THAT COURT . HE WAS APPOINTED AN ADMINISTRATOR IN GRADE A 7 , STEP 3 , WITH EFFECT FROM 1 MAY 1978 . ON 29 MAY 1979 HE WAS PROMOTED TO GRADE A 6 , STEP 1 , HIS SENIORITY IN THAT STEP BEING ANTEDATED TO 1 JULY 1977 .
4 DURING THAT PERIOD THE DEFENDANT RECRUITED OFFICIALS AND OTHER EMPLOYEES NOT ALREADY EMPLOYED BY THE COMMUNITIES , WHO WERE CLASSIFIED , AS FROM 21 FEBRUARY 1980 , ON THE BASIS OF THE CRITERIA FOR THE APPOINTMENT AND CLASSIFICATION OF STAFF LAID DOWN IN A DECISION OF THE COURT OF AUDITORS .
5 IN THE APPLICANT ' S VIEW THE CLASSIFICATION CRITERIA THUS ESTABLISHED LED TO DISCRIMINATION , IN SO FAR AS THE CLASSIFICATION OF NEW OFFICIALS AND OTHER STAFF WAS CONSIDERABLY MORE FAVOURABLE THAN THAT OF THE EXISTING OFFICIALS TRANSFERRED FROM THE AUDIT BOARD . ON 12 MAY 1980 HE THEREFORE SENT A LETTER TO THE APPOINTING AUTHORITY REQUESTING THE COURT OF AUDITORS TO EXAMINE THE POSSIBILITY OF RECTIFYING THAT ANOMALY .
6 BY LETTER OF 25 JULY 1980 , THE PRESIDENT OF THE COURT OF AUDITORS REFUSED THE REQUEST SINCE THERE WERE , IN HIS OPINION , NO GROUNDS FOR REGARDING THE SITUATION AS ANOMALOUS AND THE APPLICANT HAD BEEN TRANSFERRED AND PROMOTED IN CONFORMITY WITH THE STAFF REGULATIONS AND ESPECIALLY ARTICLE 46 THEREOF .
7 WHILE CONSULTING HIS PERSONAL FILE , THE APPLICANT NOTICED A MEMORANDUM OF 13 JUNE 1980 ADDRESSED TO THE PRESIDENT OF THE COURT OF AUDITORS BY THE MEMBER OF THAT COURT RESPONSIBLE FOR STAFF MATTERS . IT WAS STATED IN THE MEMORANDUM THAT OFFICIALS ORIGINALLY RECRUITED FROM OUTSIDE THE INSTITUTION UNDER CONTRACT AS TEMPORARY OR AUXILIARY STAFF WERE GENERALLY ACCORDED A BETTER CLASSIFICATION ON BEING APPOINTED AS OFFICIALS THAN THEIR ESTABLISHED COLLEAGUES WHO WERE SUBJECT TO THE PROVISIONS OF ARTICLE 46 OF THE STAFF REGULATIONS AND THAT THAT ANOMALY COULD NOT BE REMEDIED SINCE THE COURT OF AUDITORS WAS UNDER AN OBLIGATION TO COMPLETE A RECRUITMENT CAMPAIGN THEN BEING CONDUCTED IN ACCORDANCE WITH THE SAME RULES , FOR FEAR OF GIVING RISE TO A NEW DISCRIMINATORY SITUATION ; AND THAT IN ANY CASE , MR WILLIAMS , WHOSE CASE WAS REGARDED AS AN ISOLATED ONE , COULD NOT BE PROMOTED OTHERWISE THAN IN ACCORDANCE WITH ARTICLE 46 OF THE STAFF REGULATIONS .
8 ON 15 SEPTEMBER 1980 THE APPLICANT LODGED A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , REFERRING TO THE MEMORANDUM AND ASKING FOR RECTIFICATION OF HIS CLASSIFICATION .
9 THE COMPLAINT WAS REJECTED IN A MEMORANDUM FROM THE PRESIDENT OF THE COURT OF AUDITORS OF 13 NOVEMBER 1980 , NOTIFYING THE APPLICANT THAT HIS COMPLAINT WAS INADMISSIBLE ON THE GROUND THAT HIS CLASSIFICATION , WHICH HAD BEEN FREELY ACCEPTED BY HIM BOTH WHEN HE WAS RECRUITED BY THE AUDIT BOARD AND WHEN HE WAS TRANSFERRED TO THE COURT OF AUDITORS , COULD NO LONGER BE RECTIFIED . IT FURTHER STATED THAT THE MEMORANDUM OF 13 JUNE 1980 WAS NO MORE THAN AN INTERNAL PRELIMINARY DOCUMENT AND THUS WAS NOT BINDING UPON THE APPOINTING AUTHORITY .
10 BEFORE EXPOUNDING ITS ARGUMENTS ON THE SUBSTANCE OF THE CASE , THE COURT OF AUDITORS RAISED AN OBJECTION PURSUANT TO ARTICLE 91 OF THE RULES OF PROCEDURE THAT THE ACTION BROUGHT BY MR WILLIAMS WAS INADMISSIBLE .
ADMISSIBILITY
11 IN SUPPORT OF ITS OBJECTION OF INADMISSIBILITY , THE DEFENDANT CONTENDS THAT THE ACTION IS MANIFESTLY OUT OF TIME , SINCE NO ACTION HAS EVER BEEN BROUGHT AGAINST THE DECISIONS WHICH ARE RELEVANT TO THE APPLICANT ' S CLASSIFICATION , NAMELY HIS ESTABLISHMENT BY THE AUDIT BOARD , HIS TRANSFER TO THE COURT OF AUDITORS IN THE SAME GRADE AS HE HAD PREVIOUSLY HELD AND HIS PROMOTION TO GRADE A 6 AND THAT THE CLASSIFICATION OF OFFICIALS ENGAGED LATER COULD NOT AS SUCH CONSTITUTE A MEASURE ADVERSELY AFFECTING HIM . THE DEFENDANT ADDS THAT THE DECISION REJECTING THE COMPLAINT WAS MERELY A MEASURE CONFIRMING PREVIOUS DECISIONS AND WAS CONSEQUENTLY NOT SUBJECT TO REVIEW .
12 THE APPLICANT ADMITS THAT HE IS NO LONGER ENTITLED TO CONTEST HIS INITIAL CLASSIFICATION , BUT CONSIDERS HIMSELF ENTITLED TO CONTEST HIS PRESENT CLASSIFICATION BECAUSE THERE HAVE BEEN NEW DEVELOPMENTS , NAMELY THE BETTER CLASSIFICATION ASSIGNED TO OFFICIALS AND OTHER STAFF RECRUITED SINCE FEBRUARY 1980 FROM OUTSIDE THE COMMUNITIES . IT IS INDEED THAT MEASURE , NAMELY THE MORE FAVOURABLE CLASSIFICATION SUBSEQUENTLY ASSIGNED TO OTHER OFFICIALS , WHICH ADVERSELY AFFECTS HIM , ALTHOUGH HE IS NOT IN ANY WAY CONCERNED TO DISCUSS SUCH CLASSIFICATION . LASTLY , HE CLAIMS THAT THE DECISION REJECTING HIS COMPLAINT WAS NOT MERELY A CONFIRMATORY MEASURE BECAUSE IT WAS THE ONLY REASONED REPLY TO HIS COMPLAINTS .
13 IT SHOULD BE OBSERVED THAT THE APPLICANT CONTESTS NEITHER HIS INITIAL CLASSIFICATION NOR THAT OF THE NEW OFFICIALS RECRUITED AFTER FEBRUARY 1980 FROM OUTSIDE THE COMMUNITIES . HENCE THE ONLY FACTORS TO BE CONSIDERED RELATE IN THE FIRST PLACE TO THE QUESTION WHETHER THAT CLASSIFICATION OF THE NEW OFFICIALS AMOUNTS TO A NEW DEVELOPMENT CAPABLE OF ADVERSELY AFFECTING THE APPLICANT AND IN THE SECOND PLACE TO THE NATURE OF THE DECISION REJECTING HIS COMPLAINT , THAT IS , TO THE QUESTION WHETHER IT IS MERELY A CONFIRMATORY MEASURE .
14 AS FAR AS THE FIRST FACTOR IS CONCERNED , IT SHOULD BE RECALLED THAT , IN ITS JUDGMENT OF 12 JULY 1973 IN CASE 28/72 , TONTODONATI V COMMISSION ( 1973 ) ECR 779 , THE COURT ACKNOWLEDGED THAT IT WAS LEGITIMATE FOR AN OFFICIAL TO CALL FOR REVIEW OF HIS ADMINISTRATIVE STATUS , IN THE LIGHT OF ANY REORGANIZATION OF THE DEPARTMENT IN WHICH HE WAS EMPLOYED . ACCORDINGLY , THE IMPLEMENTATION OF A GENERAL DECISION BASED ON NEW CRITERIA FOR THE CLASSIFICATION OF NEW STAFF RECRUITED TO THE DEPARTMENT , WHICH ENTAILS INEQUALITIES OF TREATMENT FOR OFFICIALS APPOINTED AT AN EARLIER STAGE , ENTITLES THOSE OFFICIALS TO CALL FOR A REVIEW OF THEIR ADMINISTRATIVE STATUS WITH A VIEW TO THEIR OBTAINING AN APPROPRIATE ALTERATION OF THEIR CLASSIFICATION ON THE GROUND THAT THE EMERGENCE OF THAT NEW DEVELOPMENT IS SUCH AS TO AFFECT THEM ADVERSELY .
15 AS REGARDS THE DEFENDANT ' S ARGUMENT THAT THE APPLICANT CONTESTED A MEASURE WHICH MERELY CONFIRMED PREVIOUS DECISIONS WHICH THEMSELVES HAD NOT BEEN CONTESTED , THAT OBJECTION OF INADMISSIBILITY IS AT VARIANCE WITH THE FINDING IN THE PRECEDING PARAGRAPH THAT IT IS THE GENERAL DECISION BASED ON NEW CRITERIA FOR CLASSIFICATION , IMPLEMENTED ON 21 FEBRUARY 1980 , WHICH IN THIS CASE CONSTITUTES THE MEASURE ADVERSELY AFFECTING THE APPLICANT . IN CONTESTING THAT MEASURE , THE LATTER HAS COMPLIED WITH ALL THE TIME-LIMITS PRESCRIBED IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .
16 THE APPLICATION IS , ACCORDINGLY , ADMISSIBLE .
SUBSTANCE
17 ALL THE APPLICANT ' S ARGUMENTS ESSENTIALLY CONCERN TWO PROBLEMS , RELATING FIRST TO HIS CLASSIFICATION AND SECONDLY TO HIS CLAIM FOR DAMAGES .
A - THE APPLICANT ' S CLASSIFICATION
18 THE APPLICANT BASES HIS CLAIM FOR A BETTER GRADE ON ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS , WHICH PROVIDES AS FOLLOWS : ' ' IDENTICAL CONDITIONS OF RECRUITMENT AND SERVICE CAREER SHALL APPLY TO ALL OFFICIALS BELONGING TO THE SAME CATEGORY OR TO THE SAME SERVICE . ' ' HE TAKES THE VIEW THAT THAT PROVISION SHOULD BE INTERPRETED AS MEANING THAT ANY DISCRIMINATION BETWEEN OFFICIALS IN THE SAME CATEGORY OR SERVICE IS PROHIBITED . HOWEVER , HE NOTES - AS DOES THE ADMINISTRATION ITSELF IN ITS MEMORANDUM OF 13 JUNE 1980 - THAT AS A RESULT OF THE RECRUITMENT CARRIED OUT SINCE FEBRUARY 1980 , OFFICIALS WITH LESS PROFESSIONAL EXPERIENCE AND FEWER UNIVERSITY QUALIFICATIONS THAN HIMSELF ARE ASSIGNED TO HIGHER GRADES OR ELSE TO HIGHER STEPS WITHIN THE SAME GRADE . HE CLAIMS THAT THE APPOINTING AUTHORITY OUGHT TO RECTIFY THAT ANOMALY .
19 THE DEFENDANT POINTS OUT THAT THE APPLICANT ' S PRESENT CLASSIFICATION , WHICH HE ACCEPTED , MAY NO LONGER BE CONTESTED . IT CONTENDS THAT OFFICIALS ASSIGNED TO GRADES HIGHER THAN THAT OF THE APPLICANT OBTAINED THEM BY MEANS OF PROPERLY ORGANIZED COMPETITIONS ABOUT WHICH NO COMPLAINTS WERE MADE AND IN SOME OF WHICH THE APPLICANT HIMSELF TOOK PART , ALTHOUGH WITHOUT SUCCESS .
20 THAT ARGUMENT PUT FORWARD BY THE COURT OF AUDITORS IS CORRECT AND IS NOT MOREOVER CONTRADICTED BY THE APPLICANT BUT THE QUESTION REMAINS WHETHER THE QUALIFICATIONS AND THE EXPERIENCE ACQUIRED BY THE APPLICANT ARE , IN THE NEW CIRCUMSTANCES CREATED BY THE INTRODUCTION OF NEW CLASSIFICATION CRITERIA IN FEBRUARY 1980 , SUCH AS TO ENTITLE HIM TO CLAIM A HIGHER STEP IN HIS GRADE , NAMELY GRADE A 6 .
21 IN THE FIRST PLACE IT SHOULD BE RECALLED THAT ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS , EXPRESSING AS IT DOES THE PRINCIPLE OF EQUALITY OF TREATMENT AS BETWEEN OFFICIALS OF THE SAME CATEGORY OR IN THE SAME DEPARTMENT , IS OF CENTRAL IMPORTANCE TO THE LEGAL PROVISIONS GOVERNING EMPLOYEES OF THE EUROPEAN COMMUNITIES .
22 THAT PRINCIPLE UNDERLIES THE STAFF REGULATIONS , AND IN PARTICULAR ARTICLE 46 , WHICH APPLIES TO THE AWARD OF A HIGHER STEP UPON PROMOTION IN CASES WHERE THE CAREER OF THE OFFICIAL CONCERNED IS ORGANIZED IN A CONSISTENT MANNER FROM THE OUTSET . THAT IS NOT THE CASE IN THESE PROCEEDINGS , WHERE THE COURT OF AUDITORS , HAVING BEEN NEWLY CREATED , WAS OBLIGED TO RECRUIT STAFF AND PRESCRIBED FOR THE NEW OFFICIALS RECRUITED FROM OUTSIDE THE COMMUNITIES INDEPENDENT RULES FOR CLASSIFICATION WHICH DID NOT EXIST IN THAT FORM IN OTHER COMMUNITY INSTITUTIONS .
23 IN THE CIRCUMSTANCES , THE COURT OF AUDITORS IS NOT ENTITLED TO RELY , IN THE CASE OF OFFICIALS TRANSFERRED FROM OTHER INSTITUTIONS ( INCLUDING THE AUDIT BOARD ), UPON ARTICLE 46 IN ORDER TO JUSTIFY THE ALLEGED DIFFERENCE BETWEEN THEIR STATUS AND THAT OF THE NEWLY-RECRUITED OFFICIALS FROM OUTSIDE THE COMMUNITIES , ESPECIALLY WHEN THE DECISIVE CRITERION LAID DOWN BY THE DECISION OF FEBRUARY 1980 WITH REGARD TO ASSIGNMENT TO AN APPROPRIATE STEP IS APPROPRIATE EXPERIENCE AND WHEN , IN THE OPINION OF THE COURT OF AUDITORS ITSELF , BY VIRTUE OF THAT CRITERION THE APPLICANT SHOULD BE AWARDED A HIGHER STEP .
24 CONSEQUENTLY , THE DEFENDANT ' S DECISION REFUSING TO REVIEW THE APPLICANT ' S CLASSIFICATION SHOULD BE ANNULLED AND THE DEFENDANT SHOULD BE ORDERED TO CLASSIFY THE APPLICANT ON THE APPROPRIATE STEP , TAKING ACCOUNT OF HIS EXPERIENCE AND POSSIBLY OF HIS QUALIFICATIONS IN CONFORMITY WITH THE DECISION OF FEBRUARY 1980 , IN ORDER TO REMOVE THE DIFFERENCE IN CLASSIFICATION BETWEEN HIM AND OFFICIALS FROM OUTSIDE THE COMMUNITY TO WHOM THE CLASSIFICATION CRITERIA OF THE ABOVE-MENTIONED DECISION HAVE BEEN APPLIED .
B - CLAIM FOR DAMAGES
25 THE APPLICANT BASES HIS CLAIM FOR DAMAGES UPON THE ALLEGATION THAT THE COURT OF AUDITORS WAS GUILTY OF A WRONGFUL ACT CONSISTING OF DISCRIMINATION AGAINST HIM REGARDING HIS CLASSIFICATION . IF HE HAD BEEN PLACED IN GRADE A 6 , STEP 8 , HE WOULD HAVE EARNED AN EXTRA SUM OF BFR 30 000 PER MONTH , WHICH , OVER A PERIOD OF THREE YEARS , AMOUNTS TO BFR 1 080 000 , THE SUM WHICH HE NOW SEEKS TO RECOVER .
26 IT SHOULD BE NOTED THAT SINCE THE APPLICANT HAS FAILED TO PUT FORWARD ANY RELEVANT ARGUMENTS CONCERNING ANY WRONGFUL ACT ON THE PART OF THE ADMINISTRATION , HIS CLAIM , THAT THE COURT OF AUDITORS HAS INCURRED LIABILITY IN THAT REGARD MUST BE DISMISSED .
27 FURTHERMORE , SINCE THE COURT OF JUSTICE HAS RECOGNIZED THAT THE CLASSIFICATION OF THE APPLICANT IS DISCRIMINATORY AND HAS ORDERED THE DEFENDANT TO RECTIFY THAT CLASSIFICATION IN THE MANNER MENTIONED ABOVE , THE APPLICANT WILL RECEIVE APPROPRIATE COMPENSATION , AND IN ANY CASE IT IS NOT PERMISSIBLE FOR THE APPLICANT WHO HAS CLAIMED RE-CLASSIFICATION ONLY AS REGARDS THE FUTURE , TO OBTAIN , BY MEANS OF A CLAIM FOR DAMAGES , A BENEFIT EQUIVALENT TO RE-CLASSIFICATION DATING BACK TO BEFORE FEBRUARY 1980 .
28 THAT RECTIFICATION MUST BE CARRIED OUT WITH EFFECT FROM THE DATE ON WHICH THE APPLICANT LODGED HIS COMPLAINT UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS AND INTEREST AT THE RATE OF 6% MUST BE PAID AS FROM THE DATE ON WHICH EACH PAYMENT FELL DUE .
COSTS
29 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .
30 AS THE COURT OF AUDITORS HAS SUBSTANTIALLY FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .
ON THOSE GROUNDS ,
THE COURT ( THIRD CHAMBER )
HEREBY :
1 . ORDERS THE COURT OF AUDITORS TO CORRECT THE STEP ASSIGNED TO THE APPLICANT WITH EFFECT FROM 12 MAY 1980 AND TO OBSERVE THE CRITERIA LAID DOWN IN ITS DECISION OF FEBRUARY 1980 ;
2 . ORDERS THE COURT OF AUDITORS TO PAY THE DIFFERENCE IN SALARY RESULTING FROM THAT CORRECTION , INCREASED BY INTEREST AT THE RATE OF 6% AS FROM THE DATE ON WHICH EACH PAYMENT FELL DUE ;
3 . ANNULS THE DECISION OF THE PRESIDENT OF THE COURT OF AUDITORS OF 25 JULY 1980 ;
4 . ORDERS THE COURT OF AUDITORS TO PAY THE WHOLE OF THE COSTS .
