61971J0037(00)

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1 . OFFICIALS - APPEAL AGAINST AN ADMINISTRATIVE DECISION - PARTIAL ANNULMENT REQUESTED - SUBMISSION NOT CONCERNING PUBLIC POLICY - ANNULMENT OF THE ENTIRE DECISION NOT PERMISSIBLE

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLE 91 )

2 . OFFICIALS - GRADE AND POST - CORRESPONDENCE - CONDITIONS

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLES 5 AND 7 )

1 . IF THE PARTIAL ANNULMENT OF A MEASURE IS REQUESTED WHEREAS THE SUBMISSION DIRECTED AGAINST THE CONTESTED DECISION DOES NOT CONCERN PUBLIC POLICY, THE ANNULMENT OF THE ENTIRE MEASURE BY THE COURT WOULD CONSTITUTE A RULING ULTRA PETITA .

2 . THE PRINCIPLE OF CORRESPONDENCE BETWEEN GRADE AND DUTIES MAY ONLY BE INVOKED IF THE PERSON CONCERNED ACTUALLY AND REGULARLY PERFORMS ALL THE DUTIES OF THE POST WHICH HE CLAIMS .

IN CASE 37/71

MICHEL JAMET, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN LISANZA ( ITALY ), REPRESENTED AND ASSISTED BY MARCEL GREGOIRE, ASSISTED BY EDMOND LEBURN, BOTH ADVOCATES OF THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, 83, BOULEVARD GRANDE-DUCHESSE-CHARLOTTE, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF E . REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION, PRINCIPALLY, FOR THE RECLASSIFICATION OF THE APPLICANT IN GRADE B 3 WITH EFFECT FROM 26 AUGUST 1965 OR, ALTERNATIVELY, FOR HIS APPOINTMENT TO A POST AS DESIGNER AND FOR HIS PROMOTION TO GRADE B 3 WITH EFFECT FROM 1 DECEMBER 1970 .

ADMISSIBILITY

1 THE DEFENDANT ASSERTS THAT THE APPLICATION IS INADMISSIBLE IN THAT IT SEEKS, PRINCIPALLY, A DECISION, OR AT LEAST A RULING, THAT THE APPLICANT SHOULD BE CLASSIFIED IN GRADE B 3 WITH EFFECT FROM 26 AUGUST 1965 AND IN THAT, ALTERNATIVELY, IT REQUESTS THE PARTIAL ANNULMENT OF THE DECISION OF 3 FEBRUARY 1971 AND AS A FURTHER ALTERNATIVE THE ANNULMENT OF THE DECISION REJECTING BY IMPLICATION THE COMPLAINT SUBMITTED BY THE APPLICANT AGAINST THE SAID DECISION .

2 THE APPLICANT, A DRAUGHTSMAN IN GRADE C 1 AT THE JOINT NUCLEAR RESEARCH CENTRE AT ISPRA, HAVING MADE VARIOUS UNSUCCESSFUL REQUESTS TO HAVE HIS POST RE-GRADED IN THE CAREER BRACKET OF DESIGNER, B3-B2 IN 1967 AND 1968, WAS APPOINTED BY A DECISION OF 3 FEBRUARY 1971 TO A POST AS A LABORATORY TECHNICIAN IN GRADE B4, STEP 1 .

3 ON 3 MARCH 1971 HE REQUESTED BY MEANS OF A COMPLAINT THROUGH OFFICIAL CHANNELS THAT THAT DECISION BE AMENDED BY SUBSTITUTING FOR THE REFERENCE TO " LABORATORY TECHNICIAN " THAT OF " DESIGNER ".

4 SINCE THE COMPETENT AUTHORITY DID NOT REPLY TO THIS COMPLAINT THE APPLICANT LODGED THIS APPLICATION BEFORE THE COURT .

5 THE APPLICATION IS PRINCIPALLY FOR A DECISION THAT THE APPLICANT SHOULD BE CLASSIFIED IN GRADE B 3 WITH EFFECT FROM 26 AUGUST 1965 .

6 THIS FIRST HEAD OF CLAIM MUST BE DISMISSED AS INADMISSIBLE SINCE THAT REQUEST HAS ALREADY BEEN THE SUBJECT OF PREVIOUS IMPLIED DECISIONS OF REJECTION WHICH WERE NOT CONTESTED WITHIN THE PERIOD LAID DOWN IN ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS .

7 THE APPLICANT OBJECTS THAT THE DECISION OF 3 FEBRUARY 1971 RECOGNIZES BY IMPLICATION THAT THE REQUESTS PREVIOUSLY REJECTED WERE WELL-FOUNDED AND THEREBY CONSTITUTES A NEW FACT WHICH RE-OPENS THE PERIOD FOR LODGING AN APPLICATION AGAINST THOSE DECISIONS .

8 WITHOUT IT BEING NECESSARY TO CONSIDER TO WHAT EXTENT A NEW FACT IS CAPABLE OF RE-OPENING A PERIOD FOR LODGING AN APPLICATION WHICH THE PERSON CONCERNED HAS ALLOWED TO EXPIRE, IT IS SUFFICIENT TO STATE THAT, FAR FROM HAVING THE MEANING WHICH THE APPLICANT ATTACHES TO IT, THIS DECISION EXPRESSLY GUIDES THAT IT WILL ONLY TAKE EFFECT FROM 1 JANUARY 1971 .

9 SECONDLY THE APPLICATION IS FOR THE PARTIAL ANNULMENT OF THE INSTRUMENT, APPOINTMENT AND PROMOTION OF 3 FEBRUARY 1971, " IN SO FAR AS IT DESCRIBES THE POST TO WHICH THE APPLICANT IS APPOINTED AS THAT OF A LABORATORY TECHNICIAN AND REFERS TO THE GRADE TO WHICH HE IS PROMOTED AS GRADE B 4 ".

10 THIS REQUEST IS ALSO INADMISSIBLE .

11 THE PARTS OF THE CONTESTED DECISION WHOSE ANNULMENT IS REQUESTED ARE INSEPARABLE FROM THIS DECISION AS A WHOLE SO THAT IN THEIR ABSENCE THE MEASURE IN DISPUTE WOULD NO LONGER BE CAPABLE OF PRODUCING LEGAL EFFECTS .

12 FURTHERMORE, IF THE COURT WERE TO ANNUL THE ENTIRE MEASURE THIS WOULD CONSTITUTE A RULING ULTRA PETITA SINCE THE APPLICATION AGAINST THE CONTESTED DECISION DOES NOT CONCERN PUBLIC POLICY .

13 ON THE OTHER HAND, THE APPLICATION IS ADMISSIBLE TO THE EXTENT TO WHICH IT REFERS TO THE ANNULMENT OF THE IMPLIED DECISION OF REJECTION RESULTING FROM THE FAILURE TO REPLY TO THE COMPLAINT AGAINST HIS APPOINTMENT AND PROMOTION OF 3 MARCH 1971 SUBMITTED BY THE APPLICANT TO HIS IMMEDIATE SUPERIOR .

14 THIS COMPLAINT CONSTITUTES A REQUEST FOR RE-GRADING OF A POST AND, AS SUCH, IS ADMISSIBLE .

SUBSTANCE OF THE CASE

15 BEFORE THE DECISION OF 3 FEBRUARY 1971 THE APPLICANT HAD FOR SEVERAL YEARS HELD THE POST OF DRAUGHTSMAN WHICH IN ACCORDANCE WITH ANNEX I ( B ) TO THE STAFF REGULATIONS CORRESPONDS TO CAREER BRACKET C4-C1 ON THE OFFICE STAFF OF THE SCIENTIFIC AND TECHNICAL SERVICES OF THE JOINT NUCLEAR RESEARCH CENTRE .

16 DURING THIS PERIOD VARIOUS PERIODIC REPORTS WERE DRAWN UP CONCERNING HIM THE LAST OF WHICH, RELATING TO THE PERIOD FROM 1 JULY 1965 TO 30 JUNE 1967, STATES AS THE PRINCIPAL DUTIES PERFORMED " TRAINEE DESIGNER, ELECTROMECHANICAL DESIGN AND PLANNING ".

17 ACCORDING TO THE ABOVE-MENTIONED ANNEX, THE POST OF DRAUGHTSMAN CORRESPONDS TO A CAREER BRACKET COVERING GRADES C4-C1 AND THE POST AS DESIGNER CORRESPONDS TO A CAREER BRACKET COVERING POSTS B3-B2 .

18 IT WAS INTENDED THAT THOSE TWO CAREER BRACKETS SHOULD BE FILLED BY THE DESIGN OFFICE STAFF OF THE JOINT RESEARCH CENTRES .

19 TWO GRADES CORRESPOND TO THE CAREER BRACKET OF DESIGNER WHICH, ACCORDING TO THE DESCRIPTION OF DUTIES, INVOLVE POSTS DEFINED AS FOLLOWS :

" EXECUTIVE OFFICER :

B 2 - DESIGNER RESPONSIBLE FOR DESIGNING IMPORTANT PROJECTS UNASSISTED ON THE BASIS OF THE DATA LAID DOWN IN THE SPECIFICATIONS AND IN PARTICULAR FOR MAKING THE CALCULATIONS RELATING TO SUCH PROJECTS . HE GIVES INSTRUCTIONS TO THE DRAUGHTSMEN RESPONSIBLE FOR DRAUGHTING THE DETAILS OF THE SAID PROJECTS .

B 3 - DESIGNER RESPONSIBLE FOR DESIGNING A COMPLETE PROJECT UNASSISTED . THIS POSITION IMPLIES SEVERAL YEARS EXPERIENCE AS A DRAUGHTSMAN ".

20 IN VIEW OF THE SKILLS ACQUIRED BY THE APPLICANT WHICH WERE ATTESTED INTER ALIA BY HIS PERIODIC REPORT THE DEFENDANT APPOINTED HIM TO GRADE B 4 TO A POST DESCRIBED IN VACANCY NOTICE NO COM/P/2/70 AS THAT OF LABORATORY TECHNICIAN BY ALTERING HIS CATEGORY .

21 NEVERTHELESS THE COMMISSION DOES NOT CONTEST THAT THIS DESCRIPTION DOES NOT CORRESPOND TO THE POST OCCUPIED BY THE APPLICANT .

22 ACCORDING TO THE DESCRIPTION OF DUTIES, A LABORATORY TECHNICIAN IN GRADE B 4 IS RESPONSIBLE FOR CARRYING OUT EXPERIMENTS AND TESTS IN VARIOUS SECTORS AND ASSEMBLING AND CLASSIFYING THE RESULTS AND IS THEREFORE A MEMBER OF THE LABORATORY STAFF .

23 THE DEFENDANT HAS STATED THAT THE DUTIES ACTUALLY PERFORMED UNDER THE INCORRECT DESCRIPTION OF LABORATORY TECHNICIAN CORRESPOND TO THOSE OF A DRAUGHTSMAN WHO HAS SHOWN THAT HE HAS THE ABILITY TO OCCUPY THE POST OF DESIGNER AND WHO, IN ADDITION TO THE USUAL DUTIES OF DRAUGHTSMEN WITH WHICH HE IS ENTRUSTED, OCCASIONALLY CARRIES OUT COMPLETE, ALBEIT SIMPLE, PROJECTS WITHOUT HOWEVER PERFORMING ALL THE DUTIES WHICH DISTINGUISH THE POST OF DESIGNER FROM THAT OF DRAUGHTSMAN .

24 THE APPLICANT HAS NOT CONTESTED THAT HE DID NOT PERFORM ALL THE DUTIES OF A DESIGNER .

25 ON THE CONTRARY HE ASSERTED THAT THIS FACT WAS UNIMPORTANT BECAUSE, SINCE THE APPOINTING AUTHORITY DID NOT KEEP HIM IN THE POST OF DRAUGHTSMAN IN GRADE C 1, IT SHOULD INEVITABLY HAVE APPOINTED HIM TO THE POST AND GRADE OF A DESIGNER .

26 WHILST IT IS ESTABLISHED THAT THE APPLICANT HAS THE ABILITY REQUIRED FOR THE POST OF DESIGNER IT IS HOWEVER NOT ESTABLISHED WITH A SUFFICIENT DEGREE OF PROOF THAT HE IN FACT REGULARLY PERFORMS ALL THE DUTIES CONSTITUTING THE SAID POST .

27 THERE IS NO DOUBT THAT THE LEGALITY OF THE DECISION IN QUESTION IS VERY UNCERTAIN IN THAT IT ALLOCATES TO AN OFFICIAL A POST IN GRADE B 4 THE DUTIES OF WHICH WERE NOT PERFORMED BY HIM, AS WAS KNOWN, BUT THIS FACT DOES NOT PROVE THAT THE APPLICANT PERFORMED DUTIES CORRESPONDING TO THE POST AND GRADE IN WHICH HE REQUESTS TO BE RE-GRADED .

28 CONSEQUENTLY THE APPLICATION MUST BE DISMISSED .

29 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

30 THE APPLICANT HAS FAILED IN HIS APPLICATION .

31 NEVERTHELESS UNDER ARTICLE 70 OF THE SAID RULES OF PROCEDURE, IN PROCEEDINGS BROUGHT AGAINST THEM BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .