OPINION OF MR ADVOCATE-GENERAL GAND

DELIVERED ON 25 JANUARY 1965 ( 1 )

Mr President,

Members of the Court,

The details which have been brought to your attention by the written and oral procedures, coupled with the fact that the applicant's case closely resembles that of Charles Muller, which gave rise to a judgment of this Chamber of 16 December last, will enable me to pass rapidly over the facts which form the basis of the dispute now before you.

Mr Jullien, a junior executive officer at the French Ministry of Reconstruction, was taken into the service of the Commission of the EEC as from 1 June 1958. By letter dated 8 August 1959 he was informed that he had been appointed in Grade B 7, Step 4, by the Committee of Chairmen. Thereafter a decision dated 5 October 1961 classified him in Grade B 6, Step 4, as from 1 January 1961.

After the entry into force of the Staff Regulations he was established in Grade B 1, Step 4, by a decision dated 12 December 1962, in accordance with Article 102. It is not disputed that this in fact corresponded to Grade B 6, Step 4, which he previously held. He was at the same time assigned to the Directorate of Internal Affairs, Buildings, Furniture and Conferences Division, within Which he retained his duties as head of the Property Section. He did not make any complaint against this decision at the time.

However, when the Commission of the EEC adopted the table of definitions of duties and powers attaching to each post under Article 5 (4) of the Staff Regulations, which descriptions were brought to the attention of officials by the EEC Commission Staff Information Bulletin of 2 October 1963, Mr Jullien formed the view that according to this table the duties which he had in fact carried out since the beginning of his career in the European Institutions corresponded to career bracket A4/A5 (Principal Administrator) and not to career bracket B 1 (Principal Administrative Assistant). Consequently, on 4 December 1963 he submitted a complaint to the appointing authority under Article 90 with a view to being reclassified in career bracket A4/A5 with effect from 1 January 1962. As he never received a reply, he now asks you to hold that the implied decision rejecting his complaint was null and void and that the Commission must classify him in Grade A5 with effect from 1 January 1962. He further asks you to order the Commission to pay to him the sum of one franc in respect of arrears of salary, reserving the right to amend this amount during the course of these proceedings.

In his application Mr Jullien also asked you to annul the decision appointing him to an established post in so far as it classified him in Grade B 1, Step 4, and also to award him compensation for non-material damage. The first of these conclusions was clearly inadmissible as being out of time. They were both implicitly withdrawn during the written procedure, and expressly withdrawn at the hearing. Accordingly you need do no more than take note of this withdrawal.

The result will be the same for the applicant if you annul the Commission's implied refusal to reclassify him with retroactive effect. The admissibility of these conclusions, based on the Commission's decision of 29 July 1963 by which it adopted the table of definitions of duties and powers attaching to each post, is not disputed. In any event their admissibility follows from your judgment of 16 December 1964 in the Charles Muller case.

In support of his conclusions Mr Jullien relies first of all on infringement of Article 102 (1) of the Staff Regulations, which provides that a servant of the Communities who is occupying a permanent post may be established in the grade and at the step accorded to him expressly or by implication before the Staff Regulations were applied to him. This provision only concerns decisions of integration which the appointing authority took on the entry into force of the Staff Regulations and within the framework of the establishment procedure.

Mr Jullien cannot rely on this Article in order to have himself classified in any grade other than Grade B 1, Step 4, as he has never disputed the fact that this corresponds to Grade B 6, Step 4, which he held previously. Therefore this first submission fails to support the conclusions directed at obtaining reclassification which is a different operation from a decision as to integration taken on the basis of Article 102 Cso held in Maudet v EEC).

It would appear necessary also to dismiss the submission more than sufficiently presented in the application and not repeated in the reply by which Mr Jullien relies on the second part of Article 102 (1), which is a reservation as to decisions which may be taken by agreement between the Councils of the European Economic Community and the European Atomic Energy Community for standardizing practice with regard to career brackets and the criteria to be used in grading. This provision seems only to be concerned with original decisions on integration and, furthermore, nothing has come of it since the Councils have not taken the decisions on standardization the possibility of which is provided for.

But the essence of Mr Jullien's arguments is based on Article 5 of the Staff Regulations. We all know that according to this Article the correlation between basic posts and career brackets is set out in the table appearing in Annex I and that, on the basis of this table, each institution adopts the definition of duties and powers attaching to each post.

The Commission's decision of 29 July 1963 having described inter alia, the duties referable to career bracket A4/A5 (Principal Adminstrator) and those referable to career bracket B 1 (Principal Administrative Assistant), the whole question is whether the duties which were in fact being carried out by the applicant when the Staff Regulations came into force corresponded to either one or other of those descriptions.

Let me remind you of the terms used by the Commission in its decision of 29 July 1963:

In which category should Mr Jullien be placed? He has always belonged to the Buildings, Furniture and Conferences Division of the Directorate of Internal Affairs. Since 1959 this Division has included four subdivisions (I purposely use this term without precise administrative significance):

Conferences — purchases — furniture — buildings and telecommunications. The applicant was the Head of the last of these subdivisions.

With a view to showing that in this capacity he was accomplishing tasks of an A4/A5 level he points both to the importance and to the extent of his mission which included a dozen buildings in Brussels with a surface area of 100000 square metres, for the accomplishment of which he had 62 assistants under his command. He maintains above all that he thus carried out tasks which did not simply involve executive duties (‘application’) which is the hallmark of Category B, but ‘planning, advisory or supervisory duties’. In particular he drew up instructions resulting from technical experience gained in the course of his duties, in particular in connexion with fire regulations. He kept the insurance policies up to date and valued the capital sums to be insured. He was engaged in numerous negotiations with the representatives of various Belgian authorities on the subject of the buildings occupied by the EEC. He purports to support all these assertions with the help of written documents.

The truth is that while it is often difficult to evaluate the exact nature of a servant's activities from written documents, it must be accepted that in this particular case neither the documents produced during the written procedure, nor those submitted at the hearing supply any solid support for Mr Jullien's arguments. Instructions concerning conditions for the servicing of lifts and goods lifts, or concerning maximum floor weights per square metre are certainly very useful for guaranteeing the safety of users. This does not necessarily mean to say that to draw up such instructions is a ‘planning’ or ‘supervisory’ duty. That Mr Jullien may have had occasion to take part in meetings at a fairly high level can readily be admitted, but it will be noted that according to the documents which he himself has produced all he was doing at them was accompanying one of his superiors.

In reality, when the tasks which he carried out are analysed it is tempting to think, as does the Commission, that these are of the level of executive duties. The number of personnel placed under his orders should not deceive one as the personnel concerned are almost exclusively in Category C or D. The contacts which he had with specialized Belgian departments were essentially ‘routine’. The Commission admits, on the other hand, that his duties took him as far as studying or preparing draft contracts, but there is nothing in this fact which contradicts the existence of the activity of executive duties, for that does not exclude the power to exercise some discretion and initiative.

Finally it will be noted by way of comparison that in similar institutions such as the Commission of Euratom and the High Authority of the ECSC the servants placed at the head of units responsible for carrying out the same duties have been classified in Category B. It is true that Mr Jullien has an answer to this argument which is that the tasks carried out by him are harder than those of his peers in other institutions. In proof of this he points to the number of servants placed under his command and the supplies for buildings for which provision is made in the budget of the Commission of the EEC. But what is important for determining classification is not the quantity of work; it is the nature of the services caried out.

Therefore an analysis of the duties performed by Mr Jullien, as illustrated by the documents appearing on the file, does not admit of a definite pronouncement that the Commission has incorrectly applied the decision of 29 July 1963, in classifying the person concerned in Grade B 1.

There remains, however, a difficulty which you have already come across in the Charles Muller case, namely this: according to the definition of posts the following, inter alia, falls to be graded in career bracket A4/A5: the ‘head of one particular sector of activity in a Division’. No decision and no official document granted this title to Mr Jullien at the time when he was graded. We simply know that of the four officials placed in charge of the subdivisions of the Buildings, Furniture and Conferences Division, two were classified in A5, and two, including the applicant, in B 1.

It is not disputed that at the time of drawing up the Commission's budget for 1964 the Commission asked for two B 1 posts in the Division concerned to be converted into A5 posts. These two posts were the ones held respectively by the head of the Property and Telecommunications Section (that is, Mr Jullien) and by the head of the Furniture Section and the reasoning given for these requests for posts describes these officials as ‘Heads of two of the four sectors of activity in the Division’.

A request for conversion of a post also featured in the Charles Muller case. In that case you dismissed it, taking the view that the document was ‘an internal administrative document directed at persuading the budgetary authority to improve the organization of the department’ and that this could not ‘of itself amount to a legally valid admission that the applicant has a right to the post claimed’. But, Mr Jullien states, the problem here is different, for the Commission has not only asked for the post to be converted but also recognizes that the applicant is the head of a ‘sector of activity’. Coupled with the other factors in the case, this ‘admission’ on the part of the defendant proves that he has the right to be classified in career bracket A5.

For my part I repeat that nothing in the file seems to me to warrant a different grading from that originally given to Mr Jullien. This being so, whilst admitting that the words used by the Commission are more precise and go further than in the Muller case, I do not think that they are decisive for recognizing the existence of a right as at 1 January 1962, which is the only one that matters here. What strikes me about the Commission's document, as Mr Advocate-General Roemer said, is that it is a declaration of intent, an instrument in the negotiations with the Council of Ministers, aimed at enabling the administrative organization of the division to be developed.

I am thus led, in short, to the opinion

( 1 ) Translated from the French.