61963J0109

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1 . OFFICIALS - GRADING WHICH CAN NO LONGER BE CONTESTED - PUBLICATION BY THE ADMINISTRATION OF A TABLE DEFINING THE DUTIES OF OFFICIALS - IMPORTANT NEW FACT - APPLICATION FOR REVIEW OF THE DECISION ON GRADING - PERMISSIBILITY

2 . OFFICIALS - GRADING - NO RIGHT TO A PARTICULAR POST BASED ON AN INTERNAL ADMINISTRATIVE PROPOSAL FOR THE IMPROVEMENT OF THE SERVICE

3 . OFFICIALS - APPEAL AGAINST A GENERAL MEASURE FOR THE ORGANIZATION OF DEPARTMENTS - INADMISSIBILITY

( STAFF REGULATION OF OFFICIALS OF THE EEC, ARTICLE 91 )

1 . THE PUBLICATION OF A TABLE DEFINING THE DUTIES AND POWERS ATTACHING TO EACH POST CAN BE REGARDED AS AN IMPORTANT NEW FACT ENABLING AN OFFICIAL AFFECTED BY IT TO REQUEST THE ADMINISTRATION TO RETRACT A DECISION WHICH CAN NO LONGER BE CONTESTED .

2 . AN INTERNAL ADMINISTRATIVE DOCUMENT, INTENDED TO CAUSE THE BUDGETARY AUTHORITY TO IMPROVE THE ORGANIZATION OF A DEPARTMENT CANNOT BY ITSELF CONSTITUTE LEGAL RECOGNITION OF THE RIGHT OF AN OFFICIAL TO A GRADING CORRESPONDING TO A PARTICULAR POST .

3 . THE ADMINISTRATION IS ALONE RESPONSIBLE FOR GENERAL MEASURES FOR THE ORGANIZATION OF DEPARTMENTS; SUCH MEASURES CANNOT ADVERSELY AFFECT OFFICIALS (' FAIRE GRIEF ') WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS AND CANNOT THEREFORE BE THE SUBJECT OF AN APPEAL .

IN JOINED CASES 109/63 AND 13/64

CHARLES MULLER, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED AND ASSISTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D'APPEL, BRUSSELS, AND ASSISTANT LECTURER AT THE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, 6 RUE WILLY-GOERGEN, APPLICANT,

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THE EUROPEAN ECONOMIC COMMUNITY OR, ALTERNATIVELY THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ, DEFENDANT,

APPLICATION FOR

1 . THE ANNULMENT :

- OF THE IMPLIED DECISION OF THE COMMISSION WHEREBY IT REJECTED A REQUEST BY MR MULLER OF 28 AUGUST 1963, TO BE GRADED IN THE CORRESPONDING CAREER BRACKET A4/A5 WITH EFFECT FROM 1 JANUARY 1962;

- OF THE DECISION OF THE COMMISSION WHEREBY MR MULLER WAS CLASSIFIED IN GRADE B1, STEP 6;

- OF THE DECISION OF MR VAN GRONSVELD OF 11 SEPTEMBER 1963 TO WITHDRAW FROM MR MULLER HIS PERMISSION TO DEPUTIZE FOR MR BLENKERS, THE HEAD OF THE SALARY AND MISSION EXPENSES DIVISION;

- OF THE DECISION OF THE COMMISSION OF 29 JULY 1963 UPON WHICH THE PRECEDING DECISION WAS SAID TO BE BASED;

2 . PAYMENT OF DAMAGES TO MR MULLER,

THE NAMING OF THE DEFENDANTS AS PARTIES

THE APPLICANT BROUGHT APPLICATION 109/63 AGAINST THE EUROPEAN ECONOMIC COMMUNITY OR ALTERNATIVELY THE COMMISSION OF THE EEC .

DURING THE ORAL PROCEDURE HE EXPRESSLY DISCONTINUED THE APPLICATIONS IN SO FAR AS THEY WERE DIRECTED AGAINST THE COMMUNITY AS SUCH .

JOINED CASES 109/63 AND 13/64 MUST THEREFORE BE REGARDED AS APPLICATIONS AGAINST THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY ALONE .

APPLICATION TO ANNUL THE DECISION OF THE COMMISSION OF 12 JUNE 1962 CLASSIFYING MR MULLER IN GRADE B1, STEP 6

THE APPLICANT FIRST ASKS THE COURT TO ' DECLARE THAT HIS APPOINTMENT IS NULL AND VOID IN SO FAR AS HE WAS CLASSIFIED IN GRADE B1, AT STEP 6 '.

THIS APPLICATION THEREFORE ONLY ASKS FOR THE ANNULMENT OF THAT PART OF THE DECISION TAKEN BY THE COMMISSION ON 12 JUNE 1962, NOTIFIED TO THE APPLICANT ON 18 DECEMBER 1962, WHICH, AFTER INTEGRATING HIM, CLASSIFIED HIM IN GRADE B1, AT STEP 6 .

HOWEVER MR MULLER'S COMPLAINT TO THE ADMINISTRATION WAS MADE BY A LETTER OF 28 AUGUST 1963 . THE RESULTING APPLICATION TO THE COURT WAS LODGED ON 23 DECEMBER 1963 . ACCORDING TO THE PROVISIONS OF ARTICLE 91 OF THE STAFF REGULATIONS APPEALS SHALL BE FILED WITHIN THREE MONTHS FROM THE DATE OF NOTIFICATION OF THE DECISION TO THE PERSON CONCERNED . IN THIS CASE THE PERIOD HAD THEREFORE EXPIRED . AS THE APPLICANT IS THEREFORE BARRED FROM APPEALING AGAINST THE DECISION OF 12 JUNE 1962, THIS PART OF THIS APPLICATION IS THEREFORE INADMISSIBLE .

APPLICATION FOR ANNULMENT OF THE IMPLIED DECISION OF REFUSAL TO RE-GRADE HIM AND THE REQUEST FOR A DECLARATION THAT THE COMMISSION IS UNDER AN OBLIGATION TO CLASSIFY MR MULLER IN A PARTICULAR GRADE

THE APPLICANT IN ADDITION ASKS THE COURT TO ' DECLARE THAT THE COMMISSION MUST RECLASSIFY HIM IN GRADE A5 AND AT THE STEP TO WHICH HE IS ENTITLED, WITH EFFECT FROM 1 JANUARY 1962, OR AT LEAST FROM 28 AUGUST 1963 ...'.

IN ADDITION, IN HIS LETTER OF 18 AUGUST 1963 HE HAD REQUESTED ' TO BE CLASSIFIED AS PRINCIPAL ADMINISTRATOR IN CAREER BRACKET A4-A5, WITH RETROACTIVE EFFECT FROM 1 JANUARY 1962 '. THE FAILURE BY THE COMMISSION TO MAKE A DECISION AS TO THIS REQUEST BY THE EXPIRATION OF THE PERIOD LAID DOWN BY ARTICLE 91 OF THE STAFF REGULATIONS CONSTITUTES AN IMPLIED DECISION TO REFUSE THE REQUEST .

THE COMMISSION WAS NOT REQUIRED, UNLESS IMPORTANT NEW FACTS AROSE, TO RECONSIDER A DECISION WHICH COULD NO LONGER BE CONTESTED . IN THIS CASE THE APPLICANT REGARDS AS A NEW FACT OF SUCH A NATURE THE DECISION OF THE COMMISSION OF 29 JULY 1963 DRAWING UP THE TABLE WHICH DEFINES THE DUTIES AND POWERS ATTACHING TO EACH POST AND WHICH WAS NOTIFIED TO THE STAFF IN THE STAFF INFORMATION BULLETIN OF THE COMMISSION OF THE EEC N . 54 OF 2 OCTOBER 1963 . IN SUPPORT OF HIS APPLICATION THE APPLICANT QUOTES THE DEFINITION IN THIS TABLE OF THE DUTIES OF PRINCIPAL ADMINISTRATOR WHICH HE CONSIDERS APPLIES TO HIS POST AND THEREFORE JUSTIFIES A REVISION OF HIS GRADINGS .

THE PUBLICATION OF THIS TABLE COULD IN FACT BE REGARDED AS A SUFFICIENTLY IMPORTANT NEW FACT TO ENABLE THE APPLICANT TO REQUEST THE COMMISSION TO GRADE HIM IN ACCORDANCE WITH THE NEW PROVISIONS . THIS PART OF HIS APPLICATION WHICH SEEKS, ON THE GROUNDS ABOVE-MENTIONED, THE ANNULMENT OF THE IMPLIED DECISION OF THE COMMISSION TO REFUSE HIS REQUEST OF 28 AUGUST 1963 FOR A DECLARATION THAT IT WAS UNDER AN OBLIGATION TO RECLASSIFY HIM IS THEREFORE ADMISSIBLE .

AS REGARDS THE SUBSTANCE OF THIS PART OF HIS CASE, THE APPLICANT CLAIMS THAT ACCORDING TO THE SAID DEFINITION OF POSTS HIS POST IS THAT OF EITHER AN ASSISTANT TO A HEAD OF DIVISION OR A HEAD OF ONE PARTICULAR SECTOR OF ACTIVITY IN A DIVISION, AS AN OFFICIAL ENGAGED IN PLANNING DUTIES AS A HEAD OF A SPECIALIZED DEPARTMENT .

HE HOLDS THAT THE COMMISSION HAS INFRINGED THE LAST SENTENCE OF ARTICLE 5 AND ANNEX I TO THE STAFF REGULATIONS AND THE DECISION OF 29 JULY 1963 BY ITS REFUSAL TO ASSIGN HIM TO THE GRADE CORRESPONDING TO THAT POST .

IN THE FIRST PLACE THE APPOINTING AUTHORITY DID NOT ALLOCATE TO MR MULLER THE DUTIES OF ASSISTANT TO A HEAD OF DIVISION . FURTHER, THE DOCUMENTS IN THE CASE DO NOT INDICATE THAT THE APPLICANT HELPED, ASSISTED OR DEPUTIZED FOR THE HEAD OF DIVISION ON A PERMANENT BASIS .

THE APPLICANT DOES NOT, MOREOVER, APPEAR TO HAVE OCCUPIED THE POST OF ONE PARTICULAR SECTOR OF ACTIVITY IN A DIVISION OR TO HAVE BEEN ENGAGED IN PLANNING DUTIES . ALTHOUGH IT IS IMPORTANT TO ASCERTAIN THE DUTIES ASSIGNED TO HIM BY EXAMINING THE SERVICES HE RENDERED, HE DOES NOT ON THIS BASIS APPEAR TO HAVE BEEN PUT IN CHARGE OF AN ADMINISTRATIVE UNIT WHICH, HAVING REGARD TO THE NATURE OF THE WORK, WAS EQUIVALENT TO A ' SECTOR ' WITHIN THE DEFINITION OF POSTS . HE WAS DESIGNATED BY THE INTEGRATION REPORT AS ' PRINCIPAL ADMINISTRATIVE ASSISTANT ' FOR QUESTIONS RELATING TO MISSION EXPENSES . HIS ACTIVITIES CONSISTED OF DRAWING UP STATEMENTS OF ACCOUNT OF MISSION EXPENSES, WHICH, HOWEVER COMPLICATED THEY MIGHT HAVE BEEN, DO NOT INVOLVE ANY SPECIAL INITIATIVE OR RESPONSIBILITIES NOR DO THEY AMOUNT TO PLANNING DUTIES .

THE APPLICANT DOES NOT APPEAR TO HAVE BEEN HEAD OF A SPECIALIZED DEPARTMENT, AS THE SECTOR TO WHICH HE IS ASSIGNED CARRIES OUT DUTIES WHICH ARE PURELY ADMINISTRATIVE AND NOT TECHNICAL .

FINALLY, THE APPLICANT HAS HAD PRODUCED A DOCUMENT IN WHICH THE COMMISSION, IN ORDER TO JUSTIFY AN APPLICATION TO THE COUNCIL OF MINISTERS FOR A BUDGET APPROPRIATION FOR 1964, EXPRESSED ITS INTENTION TO REGARD THE APPLICANT'S DUTIES AS FALLING WITHIN CATEGORY A .

SUCH AN INTERNAL ADMINISTRATIVE DOCUMENT, HOWEVER, INTENDED TO CAUSE THE BUDGETARY AUTHORITY TO IMPROVE THE ORGANIZATION OF A DEPARTMENT, CANNOT BY ITSELF CONSTITUTE LEGAL RECOGNITION OF THE RIGHT OF THE APPLICANT TO THE POST REFERRED TO .

IT EMERGES FROM ALL THESE FACTS THAT THE COMMISSION HAS NOT INFRINGED ANY PROVISION BY REFUSING BY IMPLICATION THE REQUEST OF THE APPLICANT FOR RECLASSIFICATION AND THAT THE COMMISSION WAS UNDER NO OBLIGATION TO CLASSIFY HIM IN GRADE A5 .

THE APPLICATION IS THEREFORE UNFOUNDED .

THE CLAIM FOR PAYMENT OF ARREARS OF SALARY AND FOR DAMAGES AND INTEREST THEREON

THE APPLICANT CLAIMS PAYMENT OF ARREARS OF SALARY AND DAMAGES AND INTEREST THEREON .

AS THE PRINCIPAL CLAIMS HAVE PROVED TO BE INADMISSIBLE OR UNFOUNDED, THIS CLAIM CANNOT BE UPHELD .

THE APPLICATION FOR THE ANNULMENT OF THE DECISION OF MR VAN GRONSVELD WITHDRAWING FROM MR MULLER THE RIGHT TO DEPUTIZE FOR THE HEAD OF THE SALARIES AND MISSIONS DIVISION

BY A NOTE OF 11 SEPTEMBER 1963 MR VAN GRONSVELD, ACTING DIRECTOR-GENERAL OF ADMINISTRATION, NOTIFIED MR MULLER THAT PURSUANT TO THE DECISION OF THE COMMISSION OF 29 JULY 1963 ( P.V . P . 238 ), THE TASK OF DEPUTIZING FOR MR BLENKERS, THE HEAD OF THE SALARIES AND MISSION EXPENSES DIVISION, WOULD BE CARRIED OUT DURING HIS LEAVE BY MR ZEILMAKER, HEAD OF THE ORGANIZATION DIVISION . THE APPLICANT SUBMITS THAT THE DECISION CONTAINED IN THIS NOTE IS NULL AND VOID .

HOWEVER, THE NOTE OF MR VAN GRONSVELD TO MR MULLER IS MERELY THE APPLICATION TO MR MULLER OF THE DECISION OF THE COMMISSION . AS THERE IS NO COMPLAINT AGAINST THIS NOTIFICATION AS SUCH, INDEPENDENTLY OF THE DECISION WHICH IT MERELY IMPLEMENTS, THIS CLAIM MUST BE DISMISSED .

THE APPLICATION TO ANNUL THE DECISION OF THE COMMISSION OF 29 JULY 1963

THE APPLICANT PLEADS THE INVALIDITY OF THE DECISION BY WHICH THE COMMISSION DECIDED ON 29 JULY 1963, THAT IN DIVISIONS AND DEPARTMENTS WHERE PROVISION IS MADE FOR A SINGLE POST IN CATEGORY A, THE TASK OF DEPUTIZING FOR THE PERSON OCCUPYING THIS POST WOULD BE CARRIED OUT UNDER THE STAFF REGULATIONS AND THE INTERNAL REGULATIONS, BY THE PERSON OCCUPYING A POST IN GRADE A IN ANOTHER DIVISION OR DEPARTMENT .

HOWEVER, THE DECISION IN QUESTION IS A GENERAL MEASURE FOR THE ORGANIZATION OF DEPARTMENTS FOR WHICH THE COMMISSION ALONE IS RESPONSIBLE . SUCH MEASURES CANNOT HAVE AN ADVERSE EFFECT WITHIN THE SENSE OF ARTICLE 91 OF THE STAFF REGULATIONS AND THEREFORE CANNOT BE THE SUBJECT OF THIS APPLICATION .

THIS APPLICATION IS THEREFORE INADMISSIBLE

THE CLAIM FOR PAYMENT OF ONE BELGIAN FRANC FOR NON-MATERIAL DAMAGE

THE CLAIM FOR PAYMENT OF ONE BELGIAN FRANC FOR NON-MATERIAL DAMAGE THEREFORE APPEARS TO BE ITSELF INADMISSIBLE .

THE APPLICANT HAS FAILED ON ALL THE HEADS OF HIS CONCLUSIONS AND MUST THEREFORE BE ORDERED TO BEAR THE COSTS, WITH THE EXCEPTION OF THE COSTS OF THE COMMISSION, IN ACCORDANCE WITH ARTICLE 70 OF THE RULES OF PROCEDURE .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES JOINED APPLICATIONS 109/63 AND 13/64 AS BEING INADMISSIBLE OR UNFOUNDED;

2 . ORDERS THE APPLICANT TO BEAR THE COSTS, WITH THE EXCEPTION OF THE COSTS OF THE COMMISSION .