61984J0191

1 . OFFICIALS - ACTIONS - PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS - TIME-LIMITS - MANDATORY - EXPIRY - RE-OPENING - REQUEST UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS - NOT PERMISSIBLE

( STAFF REGULATIONS OF OFFICIALS , ARTS 90 AND 91 )

2 . OFFICIALS - ACTIONS - PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS - TIME-LIMITS - STARTING POINT - REQUEST FOR RECLASSIFICATION - LATE - EXPIRY OF TIME-LIMIT - RE-OPENING - CONDITIONS - NEW FACT

( STAFF REGULATIONS OF OFFICIALS , ARTS 90 AND 91 )

1 . THE TIME-LIMITS LAID DOWN IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS ARE MANDATORY AND ARE NOT SUBJECT TO THE DISCRETION OF THE PARTIES OR OF THE COURT , SINCE THEY WERE LAID DOWN WITH A VIEW TO ENSURING CLARITY AND LEGAL CERTAINTY . CONSEQUENTLY , AN OFFICIAL CANNOT ESCAPE THE CONSEQUENCES OF HIS FAILURE TO ACT IN GOOD TIME AND CONTRIVE TO RE-OPEN THE LIMITATION PERIODS BY SUBMITTING A REQUEST TO THE APPOINTING AUTHORITY UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS RATHER THAN A COMPLAINT AGAINST THE DECISION ADVERSELY AFFECTING HIM .

2 . ONCE THE TIME-LIMITS FOR THE COMMENCEMENT OF PROCEEDINGS AGAINST AN ACT ADVERSELY AFFECTING AN OFFICIAL HAVE EXPIRED , HE CANNOT CALL IN QUESTION HIS CLASSIFICATION ON RECRUITMENT UNLESS A NEW CIRCUMSTANCE ARISES WHICH MAKES IT NECESSARY TO RECONSIDER THE SITUATION .

WHERE CLASSIFICATION IS CONCERNED , THE MEASURE ADVERSELY AFFECTING THE OFFICIAL IS THE DECISION APPOINTING HIM AS A PROBATIONARY OFFICIAL .

( III)WITH REGARD TO COSTS , APPLY ARTICLE 70 OF THE RULES OF PROCEDURE .

JUDGMENT OF THE COURT ( SECOND CHAMBER )

7 MAY 1986*

IN CASE 191/84

( 1 ) JEAN-PIERRE BARCELLA ,

( 2 ) WINFRIED BLASIUS ,

( 3 ) DENIS CARRARA ,

( 4 ) ROGERS DELGADO ,

( 5 ) MARC DICKES ,

( 6 ) JOEL FICHANT ,

( 7 ) MICHEL KUBIAK ,

( 8 ) ANTONIO MANDARINO ,

( 9 ) GIOVANNI MILLOCH ,

( 10 ) CLAUDIO PEZZAN ,

( 11 ) LUCIANO PROIETTI ,

( 12 ) FRANCO ROSSI ,

( 13 ) MARINO TURCO ,

( 14 ) ALBERT ZBOGAR ,

( 15 ) IOANIS KLAPANARIS ,

( 16 ) CHRISTOS TARTORAS ,

( 17 ) ATHANAS TZIKAS ,

( 18 ) GERARD ZISKOS ,

( 19 ) CLAUDIO BARTOLETTI ,

( 20 ) ROGER BELLE ,

( 21 ) ANTONIO FERRI ,

( 22 ) BRUNO FRANZ ,

( 23 ) JAN LAUREYS ,

( 24 ) GERARD REIS ,

( 25 ) ROBERT SCHEMBERGER ,

( 26 ) ROBERT SCHIERTZ ,

( 27 ) JOHNNY SCHINTGEN ,

( 28 ) ALAIN ZASTAWNIK ,

OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JEAN-NOEL LOUIS , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICHOLAS DECKER , 16 AVENUE MARIE-THERESE ,

APPLICANTS ,

V

JUDGMENT

( THE ACCOUNT OF THE FACTS AND ISSUES WHICH IS CONTAINED IN THE COMPLETE TEXT OF THE JUDGMENT IS NOT REPRODUCED )

DECISION

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 18 JULY 1984 , FRANCO ROSSI AND 27 OTHER OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN GRADES D 4 , D 3 AND D 1 BROUGHT AN ACTION FOR THE ANNULMENT OF COMMISSION DECISIONS OF 21 NOVEMBER 1983 , 15 DECEMBER 1983 AND 11 JANUARY 1984 REFUSING TO RECLASSIFY THEM IN CATEGORY C .

2 IN THEIR REPLY , THE APPLICANTS ASKED THE COURT TO ' DECLARE THAT THEY ARE ENTITLED , WITHOUT BEING SUBJECT TO DISCIPLINARY MEASURES , TO REFUSE TO CARRY OUT DUTIES WHICH DO NOT CORRESPOND TO THEIR GRADE . '

3 THE COMMISSION OBJECTS TO THAT CHANGE IN THE SUBJECT-MATTER OF THE APPLICATION , WHICH WAS NOT SET OUT IN THE ORIGINAL APPLICATION OR REFERRED TO DURING THE PRE-LITIGATION STAGE .

4 IT IS THEREFORE NECESSARY FIRST OF ALL TO DEFINE THE SUBJECT-MATTER OF THE PROCEEDINGS .

5 THE CLAIM PUT FORWARD FOR THE FIRST TIME IN THE REPLY MODIFIES THE ORIGINAL SUBJECT-MATTER OF THE APPLICATION AND MUST BE REGARDED AS A NEW CLAIM . UNDER ARTICLE 38 ( 1 ) IN CONJUNCTION WITH ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE AND THE FIRST PARAGRAPH OF ARTICLE 19 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EEC , THE SUBJECT-MATTER OF THE CLAIM MUST BE SET OUT IN THE APPLICATION , AND NO NEW CLAIM MAY BE SUBMITTED IN THE COURSE OF THE PROCEEDINGS .

6 CONSEQUENTLY , THE CLAIM PUT FORWARD IN THE REPLY MUST BE CONSIDERED INADMISSIBLE , AND THE PROCEEDINGS THEREFORE CONCERN ONLY THE CLAIM FOR THE ANNULMENT OF THE REFUSAL TO RECLASSIFY THE APPLICANTS .

7 WITH THE EXCEPTION OF MR BLASIUS , WHO WAS APPOINTED AS AN OFFICIAL IN GRADE D 1 ON 1 JANUARY 1962 , THE APPLICANTS WERE ALL EMPLOYED INITIALLY AS LOCAL OR TEMPORARY STAFF BETWEEN 1974 AND 1981 . AFTER ENTERING AND PASSING COMPETITIONS , THEY WERE APPOINTED AS PROBATIONARY OFFICIALS IN GRADES D 4 OR D 3 BETWEEN 1981 AND 1983 , THE LAST OF THEM ON 1 APRIL 1983 . THEY WERE ESTABLISHED IN THOSE GRADES IN THE COURSE OF 1982 AND 1983 , THE LAST OF THEM ON 1 OCTOBER 1983 . IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE NATURE OF THE APPLICANTS ' WORK HAS NOT SIGNIFICANTLY ALTERED SINCE THEY ENTERED THE SERVICE OF THE COMMISSION AS LOCAL OR TEMPORARY EMPLOYEES .

8 THE APPLICANTS TAKE THE VIEW THAT THEIR WORK DOES NOT FALL UNDER CATEGORY D - OFFICIALS ENGAGED IN ELEMENTARY OR ROUTINE WORK - BUT UNDER CATEGORY C - OFFICIALS ENGAGED IN THE EXECUTION OF WORK OF A TECHNICAL NATURE NECESSITATING A PROFESSIONAL BACKGROUND AND QUALIFICATIONS SUPPORTED IN PRINCIPLE BY A CERTIFICATE OF OCCUPATIONAL PROFICIENCY OR ACQUIRED THROUGH PRACTICAL EXPERIENCE - IN ACCORDANCE WITH THE TABLE SHOWING BASIC POSTS AS PROVIDED FOR IN ARTICLE 5 OF THE STAFF REGULATIONS PUBLISHED IN THE COMMISSION ' S ADMINISTRATIVE NOTICES NO . 373 OF 9 JULY 1982 . ACCORDINGLY , BY REQUESTS SUBMITTED ON 15 SEPTEMBER , 22 NOVEMBER AND 13 DECEMBER 1983 PURSUANT TO ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS , THEY ASKED THE COMMISSION TO RECLASSIFY THEIR POSTS , STATING THAT THE INSTRUMENTS APPOINTING THEM AND CLASSIFYING THEM IN CATEGORY D WERE AT VARIANCE WITH THE TABLE OF BASIC POSTS .

9 THOSE REQUESTS WERE EXPRESSLY REJECTED BY THE COMMISSION BY DECISIONS OF 21 NOVEMBER 1983 , 15 DECEMBER 1983 AND 11 JANUARY 1984 . ON 19 DECEMBER 1983 AND 18 JANUARY 1984 , THE APPLICANTS SUBMITTED COMPLAINTS AGAIN REQUESTING THEIR RECLASSIFICATION IN CATEGORY C . THE COMMISSION DID NOT REPLY TO THOSE COMPLAINTS , AND THE APPLICANTS THEREFORE BROUGHT THIS ACTION ON 18 JULY 1984 .

10 THE COMMISSION OBJECTS THAT THE ACTION IS OUT OF TIME AND THEREFORE INADMISSIBLE , ON THE GROUND THAT THE ACTS ADVERSELY AFFECTING THE APPLICANTS WERE THE INITIAL DECISIONS APPOINTING THEM AS OFFICIALS . THE REQUESTS FOR RECLASSIFICATION SUBMITTED TO THE COMMISSION MUST THEREFORE BE REGARDED AS COMPLAINTS AGAINST THOSE DECISIONS . HOWEVER , THOSE COMPLAINTS WERE NOT BROUGHT WITHIN THE PERIOD OF THREE MONTHS IMMEDIATELY FOLLOWING THE APPOINTMENT OF EACH APPLICANT . THE PUBLICATION OF ADMINISTRATIVE NOTICES NO 373 ON 9 JULY 1982 , CONTAINING THE TABLE SHOWING BASIC POSTS AS PROVIDED FOR IN ARTICLE 5 OF THE STAFF REGULATIONS , DID NOT CONSTITUTE A NEW EVENT JUSTIFYING THE RE-OPENING OF THE PERIOD FOR SUBMITTING A COMPLAINT . THE APPLICANTS WERE APPOINTED IN THE GRADE IN WHICH THEY HAD PREVIOUSLY BEEN CLASSIFIED AND THEIR DUTIES REMAINED IDENTICAL .

11 IN ITS JUDGMENT OF 18 JUNE 1981 ( CASE 173/80 BLASIG V COMMISSION ( 1981 ) ECR 1649 ), THE COURT HELD THAT IN THE CASE OF A REQUEST FOR RECLASSIFICATION THE MEASURE ADVERSELY AFFECTING THE APPLICANT IS THE DECISION APPOINTING HIM AS A PROBATIONARY OFFICIAL . IT IS THAT DECISION WHICH DEFINES THE DUTIES FOR WHICH THE OFFICIAL HAS BEEN APPOINTED AND DEFINITIVELY FIXES THE CORRESPONDING GRADE . THE DECISION ESTABLISHING THE OFFICIAL MERELY CONFIRMS THAT DECISION .

12 AN OFFICIAL MAY CHALLENGE HIS CLASSIFICATION ON RECRUITMENT ONLY UNDER THE CONDITIONS AND WITHIN THE TIME-LIMITS LAID DOWN IN THE STAFF REGULATIONS ( SEE THE JUDGMENT OF 1 DECEMBER 1983 IN CASE 198/82 BLOMEFIELD V COMMISSION ( 1983 ) ECR 3981 ). THE TIME-LIMITS LAID DOWN IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS ARE MANDATORY AND ARE NOT SUBJECT TO THE DISCRETION OF THE PARTIES OR OF THE COURT , SINCE THEY WERE LAID DOWN WITH A VIEW TO ENSURING CLARITY AND LEGAL CERTAINTY ( SEE THE JUDGMENTS OF 20 MARCH 1984 IN JOINED CASES 75 AND 117/82 RAZZOUK AND BEYDOUN V COMMISSION ( 1984 ) ECR 1509 , AND 12 JULY 1984 IN CASE 227/83 MOUSSIS V COMMISSION ( 1984 ) ECR 3133 ). AN OFFICIAL CANNOT CONTRIVE TO RE-OPEN THE LIMITATION PERIODS BY SUBMITTING A REQUEST TO THE APPOINTING AUTHORITY UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS RATHER THAN A COMPLAINT AGAINST THE DECISION ADVERSELY AFFECTING HIM . THE APPLICANTS ' ' REQUESTS FOR RECLASSIFICATION ' MUST THEREFORE BE REGARDED AS COMPLAINTS WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AND SHOULD HAVE BEEN BROUGHT WITHIN THREE MONTHS OF THE ACT ADVERSELY AFFECTING THEM .

13 ONCE THE TIME-LIMITS FOR THE COMMENCEMENT OF PROCEEDINGS AGAINST AN ACT ADVERSELY AFFECTING AN OFFICIAL HAVE EXPIRED , A REQUEST UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS MAY BE BROUGHT ONLY IN THE EVENT OF A NEW CIRCUMSTANCE ARISING WHICH MAKES IT NECESSARY TO RECONSIDER THE SITUATION . THE PUBLICATION IN ADMINISTRATIVE NOTICES NO 373 OF 9 JULY 1982 OF THE TABLE OF BASIC POSTS DOES NOT CONSTITUTE A NEW CIRCUMSTANCE . THE TABLE DOES NOT ALTER THE DESCRIPTION OF THE APPLICANTS ' POSTS , BUT MERELY BRINGS UP TO DATE THE TABLE PREVIOUSLY PUBLISHED IN ADMINISTRATIVE NOTICES NO 272 OF 4 SEPTEMBER 1973 , INCORPORATING THE AMENDMENTS WHICH HAVE BEEN MADE REGARDING CATEGORIES A AND B AND CERTAIN POSTS IN CATEGORY C INVOLVING DATA PROCESSING . IN ANY EVENT , AS THE COURT HELD IN ITS JUDGMENT OF 18 JUNE 1981 ( BLASIG , REFERRED TO ABOVE ), THE DESCRIPTION OF BASIC POSTS DOES NOT ENTITLE STAFF TO REQUIRE , AFTER APPOINTMENT IN A GIVEN GRADE , A HIGHER GRADE OUTSIDE THE NORMAL PROMOTION PROCEDURE .

14 SINCE THE LAST OF THE APPLICANTS WAS APPOINTED ON 1 APRIL 1983 , AND THE FIRST , MR BLASIUS , ON 1 JANUARY 1962 , THE LIMITATION PERIOD OF THREE MONTHS LAID DOWN IN ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS HAD ALREADY EXPIRED BY 15 SEPTEMBER , 22 NOVEMBER AND 13 DECEMBER 1983 , THE DATES ON WHICH THE REQUESTS FOR RECLASSIFICATION WERE SUBMITTED .

15 UNDER ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS AN APPEAL TO THE COURT OF JUSTICE LIES ONLY WHERE THE APPOINTING AUTHORITY HAS PREVIOUSLY HAD A COMPLAINT SUBMITTED TO IT PURSUANT TO ARTICLE 90 ( 2 ) WITHIN THE PERIOD PRESCRIBED THEREIN . SINCE THE COMPLAINTS WERE SUBMITTED AFTER THE EXPIRY OF THE PERIOD PRESCRIBED IN ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS THE ACTION BROUGHT BY THE APPLICANTS MUST BE DISMISSED AS INADMISSIBLE .

COSTS

16 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 OF THOSE RULES , INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )