delivered on 6 June 1985 (*1)

Mr President,

Members of the Court,

1. The applicant in this case — Calvin E. Williams, an official at the Court of Auditors — needs no introduction. His name has become well known to the Court, through the cases which he has brought before it. The first application brought by him was decided by the Court on 6 October 1982 (in Case 9/81 Williams v Court of Auditors [1982] ECR 3301); on that occasion, the Court decided that the Court of Auditors should ‘classify the applicant in 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 [with effect from12 May 1980, the date of the complaint] the difference in classification between him and officials from outside the Community to whom the classification criteria of the abovementioned decision have been applied’.

The battle waged by Mr Williams in the name of the principle of equal treatment was thus won, and no one would have imagined that less than three years later the Court would be called upon to decide a case the object of which is to determine the classification to which the applicant was entitled by virtue of the judgment cited above.

Let me now look at what has happened over those three years. When it sought to implement the decision of the Court, the Court of Auditors found that it did not understand the precise scope of that decision and therefore, on 24 November 1982, it asked the Court for an interpretation of it. However, the doubts which it entertained related essentially to the method to be applied in effecting the reclassification required by the Court; hence it was no surprise when the Court declared the application inadmissible (by an order of 29 September 1983). Thus required to discharge its own administrative responsibilities, the Court of Auditors implemented the Court's decision by a decision of 10 November 1983. On 12 May 1980 (the date on which he submitted his complaint), Mr Williams was in Grade A 6, Step 2. The Court of Auditors amended his classification so as to place him in Grade A 6, Step 3, with effect from 12 May 1980, and in Grade A 6, Step 4, with effect from 12 May 1982.

However, that was not the decision which Mr Williams expected from the administration. He therefore lodged a complaint, which was rejected on 16 March 1984. Consequently, he considered that he had no choice but to refer the dispute once again to the Court of Justice.

2. By an application lodged on 18 May 1984, Mr Williams claimed that the Court should: (a) annul the decision of 10 November 1983 reclassifying him and the decision of 16 March 1984 rejecting his complaint; (b) declare that the Court of Auditors was bound to observe all the criteria laid down in the decision of 21 February 1980, and in particular Article 4 thereof.

The applicant puts forward a single submission in support of his claim: namely, that the Court of Auditors has not ‘faithfully complied with the judgment of 6 October 1982’. I will say at once that I find that submission rather general, and the supporting arguments put forward by Mr Williams' lawyer seem to me to be no less vague. In reality the application displays the conviction that the judgment of the Court entitled the applicant to a complete reconstruction of his career. Indeed, he asks that ‘the Court of Auditors should eliminate the discrimination between the temporary servants taken on from the Audit Board (such as himself) and the newly recruited officials’. However, it must be observed that, in making that claim, Mr Williams forgets that he has brought an action for the annulment of a decision adopted by the administration and that, in deciding such an action, the Court may not encroach upon the powers attributed to the appointing authority or substitute itself for that authority.

The application must therefore be placed in its natural context: it will then be apparent that it is intended to obtain a declaration that the Court of Auditors has failed to comply with the obligations imposed upon it in the judgment of 6 October 1982 and thus to obtain the annulment of the decision reclassifying Mr Williams. Seen in that light, the applicant's submission may be analysed as follows: the institution — he seems to be saying — did not apply Article 4 of the General Decision of 21 February 1980. But was the Court of Auditors obliged to take Article 4 into account? And if it was, is it true that that provision was not correctly applied in this case?

Those two questions must now be answered. As regards the assignment of step to newly appointed officials, the aforesaid General Decision provided for two separate situations: that of candidates recruited from outside the Community and that of persons who at the time of appointment were already members of the temporary staff. In relation to external candidates, Article 3 provides, in terms largely borrowed from Article 32 of the Staff Regulations of Officials, that ‘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 allow additional seniority’. For Grades A 7 to A 5, such additional seniority must not exceed 48 months, that is to say, two steps. Article 4, on the other hand, provides that ‘a member of the temporary staff appointed to a post in the same career bracket and placed in the same grade shall, on the date of his appointment as probationer, be entitled to the seniority acquired during his period of employment as a member of the temporary staff’.

In implementing the judgment of the Court, the Court of Auditors decided that, since it was a case of ‘discrimination between a transferred official and a newly appointed official’, the reclassification of Mr Williams should, in accordance with Article 3 of the Decision and Article 32 of the Staff Regulations, ‘result in the granting of additional seniority not exceeding 48 months’. The applicant, however, considers that his seniority in step should be calculated, in accordance with Article 4, as from the date of his engagement as a temporary servant with the Audit Board. On that basis he claims that on 12 May 1980 his correct classification was Grade A 6, Step 5, and the discrimination of which he has been a victim will not, in his view, be entirely eliminated until that has been recognized.

3. Having accepted that the applicant's grading could no longer be contested, the Court stated in its judgment of 6 October 1982 that it was none the less necessary to examine whether Mr William's qualifications and experience might entitle him to claim a higher step ‘in his grade’ (A 6), in the new circumstances created by the introduction of the General Decision. In other words, the only question at issue was whether Mr William's step should be rectified. That is what the Court ordered the Court of Auditors to do, to remove ‘the difference... between him and officials from outside the Community’.

So far as Articles 3 and 4 of the General Decision are concerned, Mr Williams is in a special position because at the time at which he entered the service of the Court of Auditors he was not an official recruited from outside or a temporary servant, but had long been established as an official in Grade A 7, Step 3. Mr Williams was engaged by the Audit Board on 1 October 1974 as a temporary servant in Grade A 7, Step 2, and two years later was appointed a probationary official in Grade A 7, Step 3. In 1978, after he had been established, he was transferred to the Court of Auditors. It is not disputed that he was originally classified in Step 2 on the basis of his professional experience and, on being appointed a probationary official, was placed in Step 3 by virtue of his seniority as a temporary servant.

Consequently, if it is true that (a) in rectifying the applicant's step as required by the judgment of the Court, the Court of Auditors could not reconsider the decisions on classification set out above (because they had become final), whereas it was obliged to take account of the special circumstances in which they were adopted, and (b) at the time he was taken on as an official by the Court of Auditors Mr Williams had already been granted additional seniority of one step, corresponding to his years as a temporary servant; if, as I have said, all that is true, the institution was solely required to reexamine the applicant's experience and qualifications on the basis of the criteria laid down in the Decision of 1980. And that is precisely what it did, by granting him an additional step equal to the maximum credit provided for in such cases by Article 3 of the General Decision.

On the other hand, it was not possible to apply to him in addition Article 4, which does not govern the position of a person who is already an official when he enters the service of the Court of Auditors; if that provision had been applied, he would necessarily have been given credit, for the second time in the course of a single career, for the seniority which he had acquired as a temporary servant. However, that is certainly not the result intended by the judgment of 1982. The decision reclassifying Mr Williams adopted by the Court of Auditors on 10 November 1983 is therefore in conformity with the judgment of the Court.

4. On the basis of the foregoing considerations, I propose that the Court should dismiss the application brought on 18 May 1984 by Calvin E. Williams and order the parties to bear their own costs, pursuant to Article 70 of the Rules of Procedure.

(*1) Translated from the Italian.