Important legal notice

62000C0171

European Court reports 2002 Page I-00451

Opinion of the Advocate-General

I - Legislative background

A - The Rules of Procedure of the Court of First Instance

(a) cases brought pursuant to Article 236 of the EC Treaty or Article 152 of the EAEC Treaty;

(a) in cases which raise issues as to the legality of an act of general application;

B - The legislative background to the decisions of 15 March 1996 and 5 November 1996

3. The Court of First Instance describes the legislative background in the following terms:

"1. Candidates thus selected shall be appointed as follows:

- officials in Category A or the Language Service:

to the starting grade of their category or service;

(b) in respect of other grades [grades other than A 1, A 2, A 3 and LA 3]:

- up to one third of the appointments to posts becoming vacant;

- up to half the appointments to newly created posts.

Save in respect of Grade LA 3, this provision shall be applied by groups of six posts to be filled in each grade for the purpose of this provision."

3. The second paragraph of Article 2 of the decision of 1 September 1983 states:

"The minimum period of professional experience for classification in the first step of the starting grade of each career bracket is as follows:

- 12 years for Grades A 5 and LA 5

- 3 years for Grades A 7 and LA 7

4. The third paragraph of Article 2 of the decision provides:

"Professional experience shall be assessed on the basis of the activities engaged in prior to the date when the offer is made ..."

5. Finally, the sixth paragraph of Article 2 is worded:

"Professional experience shall be calculated from the time when the candidate was awarded the first qualification giving access, pursuant to Article 5 of the Staff Regulations, to the category in which the post falls, subject to what is provided in Article 2 of Annex I to this decision, and it must be of a level corresponding to that category."

II - Facts and proceedings before the Court of First Instance

4. The facts, as described in the contested judgment, may be summarised as follows: on 25 October 1993, Mr Libéros, the applicant and appellant (hereinafter the appellant) submitted an application to the Commission in connection with a selection procedure for temporary staff. The selection notice specified that the post to be filled was at level A 7/A 4. On 17 October 1994, the Commission offered the appellant a post as a member of its temporary staff with provisional classification at Grade A 7, Step 1.

5. On 14 November 1994 the appellant accepted the Commission's offer, although he stated that he would not be able to take up his post until 1 July 1995. The contract of employment was signed on 23 June 1995.

6. On 30 August 1995, the appellant requested reclassification in Grade A 5 in view of the length of his professional experience on the date on which that contract was drawn up. By decision of 15 March 1996, the Commission definitively classified Mr Libéros in Grade A 7, Step 3 (hereinafter the decision of 15 March 1996).

8. In his action against the decisions of 15 March and 5 November 1996, Mr Libéros raised a plea alleging infringement of the second paragraph of Article 2 of the decision of 1 September 1983 and, in the alternative, a plea alleging that that decision was unlawful in so far as it states that the first paragraph of Article 2 applies to members of the temporary staff recruited under Article 2(a) of the Conditions of employment of other servants of the European Communities (hereinafter the Conditions of employment).

9. In accordance with the provisions of Articles 14(2) and 51(2) of the Rules of Procedure of the Court of First Instance, on 9 November 1999 the First Chamber of the Court of First Instance delegated the case to the President of the Court sitting as a single Judge.

III - The contested judgment, appeal and pleas

10. The Court of First Instance first of all ruled on the admissibility of the action. It held that the action was out of time but that the applicant had made an excusable error by taking as the time from which the period started to run the date on which his complaint was lodged, relying on the Administrative Notices, which are published by the Commission concerning the procedure for initiating and investigating requests and complaints under Article 90 of the Staff Regulations (hereinafter the Administrative Notices) and which led to confusion, and also on incorrect information provided by an official of the Directorate-General for Personnel and Administration. Consequently, the Court declared the action admissible.

11. Ruling on Mr Libéros's pleas in law, it considered whether, having regard to the circumstances of the case, Article 2 of the decision of 1 September 1983, as applied individually in the present case by the Commission, which takes into account only the professional experience gained prior to the offer of employment, infringes the aims of Article 31 of the Staff Regulations.

12. The Court of First Instance took the following view:

49 In that regard, it is apparent from the judgment of the Court of First Instance in Monaco v Parliament (T-92/96, ECR-SC I-A-195 and II-573, paragraph 46), that "the exercise of the discretion conferred on [the appointing authority] by Article 31(2) of the Staff Regulations may, according to the case-law, be regulated by internal decisions, such as the new internal directives issued by the Parliament. There is nothing in principle to prohibit that authority from establishing, by an internal decision of a general nature, rules for the exercise of the discretion conferred on it by the Staff Regulations ... 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 stating the reasons for doing so, since otherwise the principle of equal treatment would be infringed ..."

50 The decision of 15 March 1996 applies an internal decision of a general nature, namely the decision of 1 September 1983, which expressly indicates, in the third paragraph of Article 2, the date chosen for the purpose of calculating the professional experience taken into account for classification, namely the date on which the offer of employment is made.

51 That rule of conduct is consistent with the purposes of the Staff Regulations, both on administrative and substantive grounds.

52 First, it is not possible to take account, when making an offer of employment, of any professional experience that may be acquired in the period between the date on which that offer is made and the date on which the candidate takes up his post.

53 Second, there is normally very little time between the offer of employment being made and its being sent to the candidate or between its being sent and the offer being accepted or refused.

54 Third, the date on which the contract is signed and the date on which the person concerned takes up his post are not generally very far apart.

55 Last, to require the institution to review the terms of the offer of employment after it has been accepted by the person concerned in order to take account of professional experience acquired between the date on which the offer was made and the date on which he actually takes up his post would allow him to postpone taking up his post in order to obtain a better classification, without objective reason or the possibility of effective control by the institution.

56 As for the applicant's argument regarding the judgment in Joined Cases T-18/89 and T-24/89 Tagaras v Court of Justice [1999] ECR II-53, it should be pointed out that the circumstances of the present case are different from those which gave rise to that judgment. In that case, there was not, in particular, any general decision relating to appointment in grade and classification in step on recruitment. Furthermore, the defendant had taken the date on which the candidate submitted his application - a different and much earlier date than the one taken by the Commission in the present case - in order to evaluate the professional experience of the person concerned. That judgment is therefore irrelevant to the present case.

57 The Commission was therefore entitled, in its decision of 15 March 1996, to fix the date on which the offer of employment was made as the final date for taking into account professional experience, in accordance with its decision of 1 September 1983.

13. By the contested judgment, the Court of First Instance dismissed the action.

14. The appeal was lodged on 10 May 2000. The appellant claims that the Court of Justice should:

- set aside the contested judgment,

- allow the claims submitted by the appellant at first instance,

- order the Commission to pay the costs.

15. The Commission contends that the Court should:

- dismiss the appeal,

- order the appellant to pay all the costs.

16. The appeal consists of three pleas.

18. The second plea alleges infringement of the second paragraph of Article 2 of the decision of 1 September 1983 and of Articles 31 and 32 of the Staff Regulations, which are applicable to members of the temporary staff by virtue of Article 5 of the decision. The third plea alleges infringement of the obligation to state the grounds of judgments.

IV - Interpretation of the Rules of Procedure of the Court of First Instance

19. The first plea essentially raises the question whether internal measures governing the exercise of their discretion by the Community institutions should be regarded as acts of general application within the meaning of Article 14(2) of the Rules of Procedure of the Court of First Instance.

A - General observations on the meaning and scope of Article 14(2) of the Rules of Procedure of the Court of First Instance

21. The version of Article 14 of the Rules of Procedure of the Court of First Instance applicable to the present case is that resulting from the Court's decision of 17 May 1999 enabling the Court to give decisions in cases when constituted by a single Judge.

23. The provision contains a second series of restrictions: only cases which, having regard to the lack of difficulty of the questions of law or fact raised, to the limited importance of those cases and to the absence of other special circumstances, [are] suitable for being so heard and determined, may be delegated by the Chamber to the Judge-Rapporteur sitting as a single Judge.

24. Therefore, Article 14(2)(2) should be read as specifically defining that second series of restrictions. Cases which are not suitable for being heard by a single Judge are those raising issues as to the legality of an act of general application [(a)], but also other cases, because of the sphere concerned [(b)]: competition and concentrations, State aid, trade protection measures, disputes relating to intellectual property rights and common organisation of the markets.

25. It is apparent from the above that cases raising questions concerning the legality of an act of general application are not suitable for being heard by a single Judge, because they are regarded in themselves as particularly difficult or important.

26. The amendment to the Rules of Procedure of the Court of First Instance made by the decision of the Court of 17 May 1999 had its origin in a proposal submitted by the Court of Justice to the Council on 7 February 1997 pursuant to Articles 168a of the EC Treaty (now Article 225(2) EC), Article 32d of the ECSC Treaty and Article 140a of the EAEC Treaty.

27. That proposal was made for several reasons: the considerable increase in the number of cases brought before the Court of First Instance each year, the general tendency, in Member States, to assign cases to a single Judge to deal with the increase in litigation, and the possibility of dispensing with the presence of a bench of Judges, when cases are of limited importance, by reference to settled case-law. On the other hand, the proposal insisted on the need for several Judges from different national legal systems to be present when the Community judicature is called upon to settle new and important issues, to develop Community law and to provide guidelines for interpreting the applicable rules which will be of general application.

28. Those factors are mentioned in the first four recitals in the preamble to Council Decision 1999/291/EC, ECSC, Euratom of 26 April 1999.

29. The fact that the proposal of the Court of Justice was accepted should not obscure the doubts which it raised with respect to principles and as regards its effectiveness. Thus, the Parliament's Committee on Legal Affairs and Citizens' Rights recommended that the Court of Justice submit a report to the Parliament and the Council containing an assessment of the application of the decision three years after its entry into force. It also pointed out that references to the importance of the case or to special circumstances were imprecise.

3. Concept of an act of general application

30. As has already been stated, Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance must be read in the light of the general principle that cases of particular importance or difficulty should not be assigned to a single Judge. However, that consideration does not make it possible to obtain a precise profile of those cases, since acts of general application in the technical sense or acts whose validity or interpretation are important in an indeterminate number of cases may be involved. In the present case, although internal directives are intended to apply to an indeterminate number of cases, it is not certain that they therefore constitute acts of general application in the technical sense.

31. In that regard, the concept of an act of general application is clearly different from that of an individual decision. However, I think it is prima facie difficult to conclude a contrario that, since an internal act of an institution does not constitute an individual decision, it has general application within the meaning of Article 14(2) of the Rules of Procedure of the Court of First Instance, both for reasons of substance and for reasons of expediency. It is therefore necessary first to consider the concept of an act of general application in a more general context and then to recall the objectives of the amendment to the Rules of Procedure.

The case-law concerning the plea of illegality under Article 241 EC

32. It should be pointed out first of all that the concept of an act of general application has a specific meaning for the purposes of Article 241 EC. In its judgment in Simmenthal v Commission the Court of Justice pointed out that Article 184 of the EC Treaty (now Article 241 EC) gives expression to a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision which is being attacked, if that party was not entitled under Article 173 of the Treaty to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void. The field of application of the said article must therefore include acts of the institutions which, although they are not in the form of a regulation, nevertheless produce similar effects and on those grounds may not be challenged under Article 173 by natural or legal persons other than Community institutions and Member States. This wide interpretation of Article 184 derives from the need to provide those persons who are precluded by the second paragraph of Article 173 from instituting proceedings directly in respect of general acts with the benefit of a judicial review of them at the time when they are affected by implementing decisions which are of direct and individual concern to them.

33. The acts of general application covered by Article 173 of the EC Treaty (now, after amendment, Article 230 EC) are those intended to produce legal effects vis-à-vis third parties. That is not the case with internal acts which are intended to regulate the discretion which an institution may, in certain circumstances, have. According to settled case-law, such internal acts constitute 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. As such, they do not therefore alter the legal position of officials and members of staff to whom they are designed to apply through individual decisions, but place limits on the discretion of the institution which issues them.

34. The expression internal decision of a general nature used by the Court of First Instance in paragraph 50 of the contested judgment, although ambiguous, does not affect that assessment: it merely stresses the fact that the act in question, although called a decision was not an individual decision.

35. In the interest of consistency and in the absence of clear evidence of a different intention, it seems highly desirable not to interpret the expression act of general application contained in Article 14(2) of the Rules of Procedure of the Court of First Instance differently from the primary legislation concept of a general act.

Objectives of the amendment to the Rules of Procedure of the Court of First Instance

36. To describe internal acts as acts of general application in order to infer that the analysis of the relevance of the assessment criteria which they provide falls outside the jurisdiction of the single Judge pursuant to Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance would also seriously affect the objectives pursued by the amendment to the Rules of Procedure.

37. The issue here is not to discuss the actual or supposed use of the single Judge as a solution to the problems encountered by the Court of First Instance, but only to point out that the interpretation that will be given to the Rules of Procedure may contribute to depriving that instrument of a large part of its practical application, even though the Court of Justice initiated it and that use has not yet been assessed.

38. In that regard, I should point out that, of 31 cases assigned to a single Judge until now, only three did not relate to staff cases. Staff cases frequently concern decisions regarding classification and promotion, mostly taken on the basis of internal decisions.

4. Intermediate result

39. The internal acts of the institutions intended to regulate the exercise of their discretion differ from acts of general application in that they create obligations only for their authors and, as such, do not alter the legal position of the persons to whom they are designed to apply through individual decisions. In order to preserve the unity of the Community legal order and having regard to the objectives of the amendment to the Rules of Procedure of the Court of First Instance at issue here, it is necessary to interpret the concept of act of general application within the meaning of Article 14(2)(2)(a) of the Rules of Procedure as not applying to those internal acts.

B - First limb of the first plea

(a) Arguments of the parties

40. The Commission considers that, since the Court of First Instance held that the application was admissible, its decision was favourable to the applicant. In its submission, the first limb of the first plea is inadmissible in that it is directed against a decision which does not adversely affect the appellant.

(b) Assessment

41. First of all, it must be pointed out that the first plea deals essentially with the formal legality of the contested judgment, claiming that it was wrong for the judgment to be given by a single Judge. In that regard, I should point out that it is common ground that the judgment, since it rejected the application, is unfavourable to the applicant.

42. I must agree with the Commission that the Court's decision relating to the admissibility of the application is favourable to the applicant in that it accepts that it is admissible even though it was lodged out of time. It is in this connection that the Court of First Instance examined the act of an allegedly general nature. The fact remains that, in any event, the Court of First Instance gave judgment when constituted in a manner which the appellant considers inappropriate. The validity of the composition of the Court seems to be so fundamental a matter that it could be raised, if necessary, of the Court's own motion.

43. Since the appellant is challenging the composition of the Court, it does not matter that part of the contested judgment was favourable to him in that the Court held that his application was admissible. In that regard, this case differs from Case C-23/00 P Council v Boehringer, pending before the Court of Justice, in which Advocate General Ruiz-Jarabo Colomer has recently delivered his Opinion. That case concerned the admissibility of an appeal against a judgment dismissing the applicants' claims for annulment of a Council regulation. The Court of First Instance had ruled on the merits, without examining the plea of inadmissibility raised by the Council. The Advocate General, referring to the Opinion of Advocate General Mischo in France v Comafrica and Others, proposed that the appeal should be allowed on the basis, in particular, that the Court of First Instance should be regarded as having implicitly acknowledged admissibility by ruling on the merits. However, in the present case, that distinction cannot be made since the appellant does not dispute the decision relating to admissibility but the very composition of the Court.

44. The first limb of the first plea should therefore be declared admissible.

(2) Merits

(a) Arguments of the parties

45. The appellant maintains that it was wrong for the case to be heard by the Judge-Rapporteur sitting as a single Judge although the admissibility of the application raised the question of the legality of the Administrative Notices.

46. The Commission considers, for its part, that the admissibility of the application did not raise the question of the legality of the rules published in the Administrative Notices, but rather the question whether the appellant had made an excusable error so that the fact that the time-limit for bringing the action had been exceeded could be disregarded.

47. The Commission considers, in the alternative, that that document does not constitute an act of general application, within the meaning of Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance, but an internal act of an institution, applicable only to its officials and members of the temporary staff. The fact that the provision is an exception to the rule contained in Article 14(2)(1) of the Rules of Procedure requires that the concept of an act of general application be interpreted strictly.

(b) Assessment

48. For the purpose of examining the admissibility of the application, the Court of First Instance considered whether the applicant had made an excusable error although he had exceeded the time-limit for bringing an action laid down in Article 91 of the Staff Regulations. To that end, the Court found it necessary to assess the conduct of the institution concerned, examining in particular whether it had been such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a reasonably well informed person.

49. In the course of that examination, the Court found that the information contained in the Administrative Notices was such as to create confusion in the applicant's mind, since it did not correspond to the calculation rules in the Staff Regulations and the applicant had obtained confirmation of that information from a Commission official. It is not therefore apparent from the contested judgment that the Court ruled on the legality of the rules published in the Administrative Notices.

50. In that regard, the question whether the information in question constituted rules may seem open to discussion. As regards the calculation of time-limits for submitting complaints and bringing actions, the Commission was not competent to amend the unequivocal rules on the matter contained in the Staff Regulations. The information given in that regard could only be by way of guidance.

51. It is therefore unnecessary to consider whether the rules in question constituted an act of general application within the meaning of Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance. The first limb of the first plea should be rejected as unfounded.

C - Second limb of the first plea

52. The appellant also considers that it was wrong for the case to be heard by the Judge-Rapporteur sitting as single Judge although the application raised the question of the legality of the third paragraph of Article 2 of the decision of 1 September 1983 on the criteria applicable to grade and step classification upon recruitment.

53. The Commission rejects that argument by referring to the contested judgment, which shows that the appellant was challenging a decision of individual application and not the legality of an act of general application. The Commission doubts, furthermore, whether the decision of 1 September 1983 constitutes an act of general application within the meaning of Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance.

(2) Assessment

54. It is not denied that the legality of the contested individual decisions was questionable inasmuch as they applied the criteria of the decision of 1 September 1983. Whether the plea alleging infringement of Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance is well founded therefore depends on the legal nature of that decision.

55. According to settled case-law, the decision of 1 September 1983 constitutes an internal decision laying down rules for the exercise of the discretion conferred on the Commission by the Staff Regulations. As a rule of conduct, indicating the practice to be followed, which the administration imposes on itself, it is not, for the reasons stated above, an act of general application within the meaning of Article 14(2)(2)(a) of the Rules of Procedure of the Court of First Instance.

56. Since the decision in question is a rule of conduct indicating the practice to be followed, the legality of the contested individual decisions of 15 March and 5 November 1996 must be assessed not in the light of that rule, but in the light of the provisions of the Staff Regulations from which it it may not diverge, or in the light of the principle of equal treatment, where the administration departs from the rules which it has imposed on itself.

57. The second limb of the first plea should therefore be rejected as unfounded.

V - The other pleas

58. By his second plea, the appellant asks that the contested judgment be set aside on the ground that it infringes the second paragraph of Article 2 of the decision of 1 September 1983 and Articles 31 and 32 of the Staff Regulations, which apply to members of the temporary staff by virtue of Article 5 of that decision. By his third plea, he claims that the grounds of the judgment are, in any event, inadequate as regards the compatibility of the third paragraph of Article 2 of the decision with the Staff Regulations.

A - Admissibility

59. The Commission maintains that the second plea is inadmissible. The alleged infringement of the second paragraph of Article 2 of the decision of 1 September 1983 constitutes a new plea, which is inadmissible because it is raised for the first time at the appeal stage. Furthermore, the appellant does not state in what respect the contested judgment infringes that provision.

60. As regards the view that a provision which precludes the taking into account of experience acquired between the date on which the offer of employment is made and the date of entry into the service of the Communities is contrary to Articles 31 and 32 of the Staff Regulations, the Commission points out that the appellant withdrew, at first instance, his plea alleging infringement of Article 31(2) of the Staff Regulations; that plea, raised at the appeal stage, is therefore a new plea and, as such, inadmissible.

61. Finally, the Commission considers that the appeal lacks clarity. As reasoning, the appellant merely cites a series of extracts from judgments and provisions of the Staff Regulations, without explaining in what respect the considerations of the Court of First Instance contained in paragraph 49 et seq. of the contested judgment are contrary to the case-law he cites.

62. With regard to the third plea, the Commission states that the appellant's line of argument seeks to dispute the findings and assessments of fact in paragraphs 52 and 55 of the contested judgment and that it is therefore inadmissible. The observations relating to the judgment in Tagaras v Court of Justice, are a repetition of what the appellant has already submitted before the Court of First Instance, which is a second ground of inadmissibility.

63. The appellant considers, essentially, that a rule which precludes the competent authority from taking into account all the qualifications and professional experience of an official or member of the temporary staff gained prior to his recruitment to the service of the Communities is contrary to the objectives of Articles 31 and 32 of the Staff Regulations. Since it was held otherwise in the contested judgment, the appellant is raising a plea alleging infringement of the second paragraph of Article 2 of the decision of 1 September 1983, read in conjunction with Articles 31 and 32 of the Staff Regulations.

64. Therefore, the admissibility of the second plea does not seem to pose any particular difficulty, since it is a question of law and, as such, subject to review by the Court of Justice.

65. The appellant is not alleging infringement of the second paragraph of Article 2 of the decision of 1 September 1983 but an error in the calculation of professional experience required under that rule for the purposes of classification in grade, in the light of the objectives of the Staff Regulations. Besides, in his application, the appellant had claimed, principally, that that rule was misapplied. It is not therefore a new plea.

66. With regard to the withdrawal at first instance of the plea alleging an infringement of Article 31(2) of the Staff Regulations, it need only be stated that that withdrawal related to a plea alleging infringement of that article through a manifest error of assessment concerning the allegedly exceptional nature of the appellant's professional experience. It did not, however, relate to the possible implications of Article 31 of the Staff Regulations for the calculation of professional experience required under the second paragraph of Article 2 of the decision of 1 September 1983.

67. Finally, no ground for inadmissibility may be detected in the appellant's reasoning. He has clearly shown in what respect he considers the case-law cited to be relevant to the view he puts forward.

68. With regard to the third plea, it should be pointed out that the appellant attempts to show that the reasons given by the Court of First Instance to support its conclusion that the third paragraph of Article 2 of the decision of 1 September 1983 is compatible with the Staff Regulations are inadequate. To that end, he submits that the grounds stated are not sufficient to justify ruling out the approach taken in Tagaras v Court of Justice. No ground for inadmissibility may be detected at this stage.

69. The second and third pleas are therefore admissible.

B - Merits

70. Under Article 31(1) of the Staff Regulations, candidates selected are to be appointed, as regards officials in Category A or the Language Service, to the starting grade of their category or service. Article 31(2) of the Staff Regulations provides that exceptions may be made within certain limits. It is clear from the case-law that that provision confers a wide discretion on the competent authority in assessing the practical experience of the persons concerned for the purposes of their classification in grade.

72. The judgment in Tagaras v Court of Justice sets out the rules for calculating the professional experience of those concerned for the purpose of applying the second paragraph of Article 32 of the Staff Regulations. Pointing out that the appointing authority has a wide discretion, within the limits laid down by the second paragraph of Article 32, to allow additional seniority in step on recruiting an official, in order to take account of the previous experience of a person appointed as an official both as regards the nature and the duration of that experience and its relationship, be it close or otherwise, to the requirements of the post to be filled ... the Court takes the view that the applicant's training and special experience should have been appraised by reference to the training and experience which he could show at the time of appointment, not at the time of the submission of his application for employment.

73. The relevance of that judgment for the purposes of the present case may be discussed from several angles: it concerned the classification in step - not in grade - of an official - not a member of the temporary staff - and, as the Commission pointed out, the defendant institution did not have an internal decision specifying the classification criteria. Even if that judgment were relevant, its transposition to the case of a member of the temporary staff would require a decision equivalent to the decision appointing an official.

74. The fact that the judgment in Tagaras v Court of Justice refers to the second paragraph of Article 32 of the Staff Regulations appears to have no effect on the reasoning in the present case, since in both cases it is a matter of appraising professional experience. In that judgment, the Court of Justice, as defendant, had made known the criteria which it applied to classification, so that the absence of an internal decision specifying those criteria had no effect on the reasoning of the Court of First Instance. Furthermore, the appellant's status as a member of the temporary staff seems to have no effect on the relevance of the judgment in question, since the Commission applied in his respect criteria intended to implement Article 31 of the Staff Regulations.

75. As regards the calculation of professional experience for the purpose of the classification of an official, the contribution of the judgment in Tagaras v Court of Justice was to specify the dies ad quem as the date of the decision appointing an official, not the date on which the candidate submitted his application. Under Article 3 of the Staff Regulations, the instrument appointing an official shall state the date on which the appointment takes effect; this date shall not be prior to the date on which the official takes up his duties. It is therefore apparent from that judgment that, in any event, account should be taken, for classification purposes, of the professional experience gained by the candidate until he takes up his duties.

76. As regards members of the temporary staff and whatever instrument is to be regarded as equivalent to the decision appointing an official, it appears that the definitive classification of the person concerned must take account of his professional experience in as broad a manner as possible. Without it therefore being necessary at this stage of my analysis to determine precisely the dies ad quem to be used when calculating the professional experience of a member of the temporary staff for the purpose of his classification, it appears that in any event, failure to take into account professional experience gained after the offer of employment, according to the third paragraph of Article 2 of the decision of 1 September 1983, is contrary to the aims of Articles 31 and 32 of the Staff Regulations.

77. By holding that individual decisions applying the rule stated in the third paragraph of Article 2 of the decision of 1 September 1983 are compatible with the purposes of the Staff Regulations, the Court of First Instance therefore misapplied Articles 31 and 32 of the Staff Regulations. The second plea should therefore be upheld and the contested judgment set aside.

78. By his third plea the appellant states essentially that the Court of First Instance gave insufficient reasons for rejecting his claims on the merits. In view of the fact that I propose that the Court of Justice should uphold the second plea, I shall merely make the following observations in the alternative in respect of the third plea.

79. Since the definitive classification of a member of the temporary staff is not decided at the time of the offer of employment, the fact that it is impossible to take account at that time of professional experience gained subsequently, up to the time he takes up his duties, and the length of time which may elapse between the date on which the offer is made and the date on which he takes up his duties do not appear to be circumstances capable of justifying the decision reached by the Court of First Instance in the contested judgment. In that regard, the position of a member of the temporary staff is comparable to that of an official.

80. As regards the possibility that a member of staff would postpone taking up his post in order to obtain a better classification, it should be remembered that the appointing authority has a wide discretion in assessing the professional experience to be taken into account. Furthermore, the competent authority may make its offer conditional on entry into service on a specific date. In addition, it should be noted at this point that the question of classification in a higher career bracket, in the light of the professional experience of the person concerned, arises only because of the Commission's administrative practice of publishing selection notices for posts covered by more than one career bracket. Finally, in the present case, it has not been claimed that the appellant acted in that way, so that the reasons stated in that regard by the Court of First Instance appear to be irrelevant.

81. It is apparent from the above that the Court of First Instance did not determine in what respect the professional experience of a member of the temporary staff should be taken into account any differently from that of an official for the purposes of classification in grade.

82. If the Court of Justice does not uphold the second plea, it should therefore uphold the third plea and set aside the contested judgment inasmuch as it rejected the application on the merits.

VI - Substance

83. Under Article 54 of its EC Statute, the Court of Justice may itself give final judgment in the matter where the state of the proceedings so permits.

84. The present case essentially concerns the question of the dies ad quem to be used - at the time of classification of members of the temporary staff - for calculating their previous professional experience.

85. In his application, the appellant claims that the Court of Justice should annul the contested decisions of 15 March and 5 November 1996, principally on the ground that the duration of his professional experience was incorrectly determined in accordance with the second and sixth paragraphs of Article 2 of the decision of 1 September 1983, having regard to Articles 31 and 32 of the Staff Regulations.

86. The parties agree that Article 32 of the Staff Regulations is not relevant to this case since it refers only to the possibility of additional seniority in step, which is not at issue here.

87. As regards the application of Article 31 of the Staff Regulations to members of the temporary staff, it is to be inferred from the principle stated above that the contested individual decisions of 15 March and 5 November 1996 are unlawful. It remains only to specify whether the dies ad quem to be used in the present case for the purpose of calculating professional experience is the date of the contract of employment or the date on which the member of staff takes up his duties.

88. It is apparent from the documents in the case that the contract of employment was dated prior to the date on which the offer of employment was made. More generally, it should be observed that the date on which the contract of employment is constituted by acceptance of the relevant institution's offer is a point of reference that is subject to variation. To take the date of the contract could therefore give rise to problems in the light of the principle of equality of treatment. Furthermore, this case shows that the contract of employment bears two different dates, which may be a source of uncertainty.

89. The date on which the member of staff takes up his duties is, on the other hand, easier to determine. As regards the risk, mentioned by the Commission, that some members of staff would postpone taking up their duties in order to obtain a better classification by virtue of having a longer period of professional experience, it should be noted that the competent authority may exert an influence on that date.

90. It is clear from the discussion of the objectives of Article 31 of the Staff Regulations and from the foregoing considerations that, by basing the contested individual decisions of 15 March and 5 November 1996 on the third paragraph of Article 2 of the decision of 1 September 1983, the Commission misapplied Article 31 of the Staff Regulations. The appellant's main plea for annulment should therefore be upheld.

VII - Costs

91. Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to costs. Under Article 69(2) of the Rules of Procedure, which apply to appeal proceedings by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they are applied for in the successful party's pleadings. Since the appellant has asked that the Commission be ordered to pay the costs, and the Commission has been unsuccessful, it must be ordered to pay not only its own costs but also all the costs incurred by Mr Libéros before the Court of First Instance and before the Court of Justice.

VIII - Conclusion

92. In the light of the foregoing considerations, I propose that the Court should:

(1) set aside the judgment of the Court of First Instance of the European Communities of 9 March 2000 in Case T-29/97 Libéros v Commission inasmuch as it dismisses the application as unfounded;

(2) on the substance of the case, annul the Commission's decisions of 15 March 1996 and 5 November 1996, and

(3) order the Commission to pay the costs incurred by Mr Libéros in connection with the proceedings at first instance and the appeal.