1.

For the annulment of the decision of 21 May 1968 in so far as it did not assign the applicant to a post corresponding to his grade;

2.

For a declaration that the applicant should no longer be deprived of a post in his grade and an order that all measures be taken to assign him to a similar post or a declaration that the applicant has been denied a post in his grade without reasonable cause, — this is the form the request took in the reply — and for the matter to be referred back to the Commission in order that it may comply with the judgment of the Court;

3.

For the annulment of all decisions to appoint or assign officials which affect the applicant adversely;

4.

For an order for damages against the Commission, the amount of damages to be assessed by the Court according to the facts. Let us see what we should make of these requests.

(a)

Let us first deal with the observance of the period for lodging an application. It is evident that this case raises problems in this respect since the legality of decisions which were taken in March 1968 is at issue although the application was not received until 12 December 1968. However, in order to understand the problem correctly some important principles of case-law must first be recalled to mind. According to these principles it is, as you know, unnecessary to lodge an application immediately against a decision which affects one adversely. On the contrary it is sufficient and even thought desirable to try to settle the complaint through official channels first, that is, within the period for lodging an application. If the complaint is unsuccessful, an application can still be made to the Court and it is sufficient for the application to be lodged before the expiry of the period laid down in Article 91 of the Staff Regulations, which starts to run when the complaint through official channels is submitted. The most recent cases establish clearly that in the latter case the annulment of the administrative decision which was originally taken can be directly requested — the Commission's representative seems to have overlooked this — (that is, not merely the annulment of the decision of rejection which is deemed to have been taken by implication after two months). In this connexion I would refer you to Case 27/68 ([1969] E.C.R 262).

On the basis of these principles it must be maintained firmly in this case that it is not only possible to request the annulment of measures which were adopted not more than three months before the application was lodged or with which the applicant was acquainted not more than three months before lodging the application. As the applicant submitted a complaint through official channels and as a decision did not follow within two months and as the application was lodged before the expiry of a further two months, all the administrative decisions already mentioned in the complaint through official channels can be taken into consideration, again on condition that they were taken not more than three months before the complaint through administrative channels was submitted or on condition that the applicant had been aware that they had been taken not more than three months before the complaint through official channels was submitted. The result of a simple calculation of the date when the complaint through official channels was lodged is that the application could encompass all the decisions to appoint or assign officials which were taken or of which the applicant was informed after 14 May 1968. Therefore the right to contest the decisions concerned with filling the posts in Grade A 2 is lost, since they were made in March or the beginning of April 1968 and published in April 1968, and the applicant himself seems to be of the same view. On the other hand there are no problems of admissibility with regard to all the decisions whereby posts in Grade A 3 were filled, at least as regards the observance of the applicable period for lodging an application, because they were only taken from 21 May 1968 onwards. In the same way, there is no problem with regard to the admissibility of the decision of 21 May 1968 onwards. In the same way, there is no problem with regard to the admissibility of the decision of 21 May 1968 whereby the applicant was assigned to a post in a lower grade.

(b)

Having just dealt with the applicant's complaint through official channels which was submitted on 14 August 1968 its content must now be examined more closely. This is necessary because a complaint through official channels can only keep open the period for lodging an application if it and the application which is lodged afterwards both have the same matter at issue. The Commission has also raised doubts in this respect. It feels that with regard to the decision of 21 May 1968 which assigned the applicant to a specific post, the complaint through official channels only seeks amendment ex nunc. It claims that this follows from the use of the word ‘réforme’ (vary). Thus the power to request the annulment of this decision in the application, that is, its revocation ex tunc, is excluded. If one looks closely at the content of the complaint through official channels as a whole it appears however that the conclusion drawn by the Commission cannot be upheld. In fact it seems inadmissible to characterize the contents and purpose of the complaint from the interpretation of the term ‘réformer’ (to vary) which has, besides, several meanings. In my opinipn it is also important that the applicant refers in the fifth paragraph of his complaint to the vacancy notices published in March 1968 and to his applications for the posts which were notified vacant. In so doing he claims that it was possible to assign him to a post in his grade, that is, doubts are cast on the legality of the decision of 21 May 1968. The question raised by the applicant whether the decision of 21 May 1968 was necessary and whether all possibilities of assigning him to a post corresponding to his grade had been exhausted must be understood in the same sense. As far as I am concerned, the result of this is in fact that the applicant at that time already deemed the decision of 21 May 1968 to be illegal and that his intention therefore was not only to obtain its amendment later on but to obtain retroactive annulment of it. Thus it follows that the subject-matter of the complaint through official channels was not only the annulment of the decisions whereby the Commission filled the posts in Grade A 3 but also the annulment of the decision to assign the applicant to a post in a lower grade. Consequently the Commission's objections as to the identity of the subject-matter of the application are unfounded.

(c)

The applicant requests the annulment of all decisions taken since 21 May 1968 to fill posts in Grade A 3, but the Commission claims that the application which has been lodged is inadmissible because Article 38 (1) of the Rules of Procedure, which requires a precise definition of the subject-matter of the dispute, has been disregarded. It maintains moreover that the applicant does not have sufficient interest to claim such extensive legal protection. It states that on no account does the applicant have an interest in the annulment of all decisions of the Commission relating to posts in Grade A 3, since if the decision of 21 May 1968 concerning the applicant were annulled the annulment would enable the judgment to be complied with appropriately even without the annulment of the remaining decisions which have been mentioned. Apart from this it is possible at the most to acknowledge that the applicant has an interest to claim legal protection as regards decisions to fill posts for which he himself applied.

I must say immediately that I cannot completely share the Commission's view in this case either. This applies above all to its reference to the requirements of Article 38 (1) of our Rules of Procedure. On this point, as regards the definition of the decisions which the applicant is contesting, I feel that by describing their content and giving the dates on which they were taken he has done all that is necessary. It is impossible to ask more of an official who was not notified of the measures concerned. Likewise I believe that the applicant did have an interest in the annulment of decisions whereby other officials in Grade A 3 were assigned to posts in their grade or whereby officials in Grade A 4 were promoted to posts in Grade A 3. This interest exists because the illegality of the decision whereby the applicant was assigned to a post in Grade 4 is substantiated, inter alia, in the form of the illegality of those other decisions to appoint officials. (As you know, the applicant claims that he was wrongly passed over when posts in Grade A 3 which existed or became vacant after 21 May 1968 were assigned). However the applicant's interest must also be acknowledged because the annulment of those decisions to appoint officials increases his chances of obtaining a suitable post in Grade A 3 more than would be the case if only the decision whereby he was assigned to his present post were annulled. This is still true although the Commission is under a duty to comply with the judgment of the Court properly as soon as the last-mentioned decision has been annulled.

However the objections of the Commission with which I now have to deal are not entirely unfounded. It claims, correctly, in my opinion, that it is impossible for the applicant to have the same interest in the simultaneous annulment of all the decisions whereby posts in Grade A 3 were filled from 21 May 1968. Even the applicant would not go so far as to claim that he should have been taken into consideration when all the posts in Grade A 3 in very different spheres of activity were filled and that, because this did not happen, all the decisions concerned must be deemed illegal. Therefore he was under a duty to specify those decisions to appoint officials in connexion with which he should have been considered. After the Commission's detailed list of posts was published in March 1968 and the vacancy notices and decisions to appoint officials were later published he was perfectly able to do this. The applicant is certainly unable to justify his failure to give precise details by referring to the quite different situation which exists when a competition of ‘tableau d'avancement’ (promotion list) is contested. Therefore such negligence must be imputed to the applicant and consequences must be drawn from this with regard to the admissibility of the application. I am convinced that these consequences are that the application for the annulment of all decisions to fill posts in Grade A 3 must on principle be •dismissed as inadmissible. Only one qualification seems to be justifiable: it can be acknowledged that the applicant had an interest in contesting decisions to appoint officials which refer to posts for which he himself expressly applied. In this respect there are sixteen cases in all if those applications are included in the investigation which were made after the proceedings before the Court had been commenced. Therefore to that extent I consider that the application for annulment is admissible, contrary to the opinion of the Commission. It is however evident that the considerations which have been mentioned lead to a considerable reduction in the purpose of the application. This must be added to the conclusions to which I have already come on the basis of the investigation as to whether the period for lodging an application was observed.

(a)

As regards the substance of the case, we are first concerned with the decision whereby the applicant was assigned to a post in a lower grade on 21 May 1968.

(b)

In the context of the requests for annulment, the legality of decisions which were later taken to fill posts in Grade A 3 which had been notified vacant must be investigated. In this respect we can certainly restrict ourselves to decisions to fill posts for which the applicant expressly applied, if my observations on admissibility are accepted. As you know there are sixteen cases in all which span the period from 24 June 1968 to 10 September 1969 (those are the dates of the applications made by the applicant). Now that the Commission has submitted the texts of the vacancy notices and the minutes of the meetings of the Commission at which decisions were made to fill posts in response to the question I asked during the oral procedure, which corresponded to an express request by the applicant, it appears to be possible to give an opinion which contains more than general observations. As you know the following posts were vacant: the post of the Head of the Trade Exemptions and Trade Promotion Division and Head of the Development Studies Division in the Directorate General Development Aid; the posts of the heads of three Divisions, that is, of the Medium-term Quantitative Analysis and Forecasts by Country Division, the Community Projections, General Assessment and Methods Division and the Budgetary Policy and Programming of Public Finance Division in the Directorate General for Economic and Financial Affairs; the post of Head of the Organization Division in the Directorate General for Personnel and Administration; the posts of Head of the Studies Structure and Development of the Trade Balance, Objectives of Commercial Policy, Promotion of Exports and Credit Insurance Division and Head of the Specific Questions relating to Imports and Exports, Safety Clauses — Far East Division in the Directorate General for External Trade; the post of Head of the European Law relating to Companies and Firms and Groups of Companies and Firms, Amalgamation and Conversion of Companies and Firms Division in the Directorate-General for te Internal Market; the post of Head of the Analysis and Documentation Division in the Directorate General for Regional Policy; the post of Head of the Supply Division in the Directorate General for Energy; the post of Adviser to the Director General and the post of Head of the Measures for the General Promotion of Research and Innovation Division in the Directorate General for General Research and Technology; the post of Adviser to the Director General in the Directorate General for Industrial Affairs; the post of Adviser to the Director General in the Directorate General External Relations and the post of Secretary to the Monetary Committee in the Directorate General for Economic and Financial Affairs. As we have seen, most of these posts were filled by promotion. In investigating these cases, it is of course not our task to replace the examination of suitability undertaken by the Commission, as I have already emphasized with regard to the similar problems in Case 12/69. However, we can obtain some impression of the way in which decisions were reached, first on the basis of the particular requirements for filling the posts which were notified vacant and secondly on the basis of the facts with which we are acquainted as to the applicant's education, qualifications and professional experience. In so doing, we quickly realize that it is impossible in most cases which have been quoted to come to a conclusion in favour of the applicant simply because the particulars he furnished (for example, on page 34 of his reply and in his observations of 18 March 1970) are insufficient. These posts are extraordinarily diverse and extremely specialized and are drawn from every conceivable sphere of activity. The only post mentioned to which this possibly does not apply is that in the Directorate General for Personnel and Administration. In Vacancy Notice COM/52 the nature of the duties is described as follows: ‘Managing an administrative unit responsible for examining plans for the structure and organization of all the Commission's Departments including requests for staff and equipment; ensuring the rational employment of staff; advising the departments on all questions concerning the organization, rationalization and mechanization of work’. According to the same vacancy notice, the requirements for the post are as follows: ‘University education supported by diploma or equivalent professional experience; thorough knowledge of the administration, organization and structure of the Commission's departments’. Now, considering that the applicant held a high-ranking post in the Directorate General for Personnel and Administration of the Euratom Commission for many years and that his last periodic report speaks of an excellent training in administration, this strongly suggests, that he is particularly suited to the post I have just mentioned. The judgment in Case 12/69 to which reference has already been made gives valuable guidance in answering the further question what conclusions should be drawn from this. According to this judgment in the view of the ‘quite exceptional and temporary’ nature of such a relegation in step, ‘it is necessary to provide the officials concerned with strict guarantees regarding their priority rights’. To quote from the judgment, ‘the implementation of such guarantees requires inter alia that the suitability of the candidates having priority be considered independently of any reference to the possible merits of those who have no such right’. Obviously this principle was not however observed in this case any more than it was in Case 12/69. In fact, it emerges from the minutes of the meeting of the Commission on 15, 16 and 17 July 1968 that all applications, even those of candidates for promotion, were distributed to members of the Commission. The minutes read further: ‘Mr Levi Sandri gave a detailed account of the candidates’ qualifications having regard to the nature of the post. He told the Commission the general particulars of the examination which he had carried out as to their merits. He also informed it of the opinion he had obtained from the Director General for Personnel and Administration'. Moreover, it continues: ‘The Commission noted that each of its members had the periodic reports concerning the candidates and had examined these periodic reports’. This justifies thesame finding in this case as that in Case 12/69. As you know, the Court stated on that occasion that ‘this method of procedure, which leads to comparisons between categories of servants who, in this instance, could not compete with each other, does not fully guarantee to the officials who had voluntarily accepted transfer under Article 8 (1) the full benefit of the priority right conferred on them by Article 8’. For this reason alone, therefore, the Commission's decision which was taken after its deliberations on 15, 16 and 17 July 1968 whereby an A 3 post in the Directorate General for Personnel and Administration was filled by promotion must be deemed invalid and annulled. Moreover reference must be made to the requirement, also emphasized in the judgment in Case 12/69, that a consideration of the abilities of officials having priority must be based on concrete factors which are capable of review, if the consideration might result in the officials referred to being excluded in favour of candidates not entitled to priority. The judgment continues : ‘such factors must only concern the qualifications required by the vacancy notice and must appear in the minutes of the Commission’. Obviously this requirement was not complied with in the present case since the Commission's minutes only contained the standard wording: ‘Having considered from an examination of their personal files the university education and professional experience of the candidates and their personalities taken as a whole the Commission came to the conclusion that none of these officials proved to be suitable for appointment to the post mentioned above which is at present vacant’. The Court of Justice did not allow general considerations of this kind in Case 12/69; it cannot seriously be considered that they would be sufficient in this case.

Therefore at least one decision to fill vacant posts in Grade A 3 out of the many decisions referred to by the applicant which were taken after 21 May 1968 can be annulled because it infringes the priority right conferred by Article 8 of Regulation No 259/68 and the request for annulment can be declared to be well founded in part. Thus the result is that the applicant in fact has the opportunity of being assigned to a suitable post in Grade A 3. However the Court of Justice cannot declare in this case that this must happen.