61965J0059

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1 . MEASURES ADOPTED BY AN INSTITUTION - DEFINITIVE NATURE - CRITERIA

2 . PROCEDURE - CLAIM FOR COMPENSATION DISTINCT FROM AN APPLICATION FOR ANNULMENT - LIMITS OF THIS DISTINCTION

1 . A MEASURE ADOPTED BY AN INSTITUTION WITHOUT CONDITIONS OR RESERVATIONS MUST BE REGARDED AS FINAL IN THE ABSENCE OF MATERIAL FACTORS WHICH CLEARLY AND CONSISTENTLY INDICATE ITS PROVISIONAL NATURE .

CF . PARA . 1, SUMMARY, CASE 34/65 ( 1966 ) ECR 521 .

2 . A PARTY MAY TAKE ACTION BY MEANS OF A CLAIM FOR COMPENSATION WITHOUT BEING OBLIGED TO SEEK THE ANNULMENT OF THE ILLEGAL MEASURE WHICH CAUSES HIM DAMAGE . HE MAY NOT, HOWEVER, BY THIS MEANS ATTEMPT TO OBTAIN A RESULT SIMILAR TO THAT OF THE ANNULMENT OF THE MEASURE IN QUESTION, IF THE APPLICATION FOR ITS ANNULMENT IS INADMISSIBLE .

IN CASE 59/65

HEINRICH SCHRECKENBERG, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED AND ASSISTED BY MARCEL SLUSNY, ADVOCATE OF THE COUR D' APPEL, BRUSSELS, LECTURER AT THE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF BERNARD SCHMITZ, 6 RUE J.B . ESCH,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, MAURICE PRELLE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE COMMISSION'S REFUSAL OF 22 SEPTEMBER 1965 TO COMPLY WITH THE APPLICANT'S REQUEST OF 8 JULY 1965; FOR CLASSIFICATION IN GRADE A3, STEP 2, AS FROM 1 JANUARY 1962, WITH ADDITIONAL BIENNIAL ADVANCEMENT OF STEP AS FROM THAT DATE; AND, IN THE ALTERNATIVE, FOR THE PAYMENT OF DAMAGES;

P.548

MR SCHRECKENBERG WAS ENGAGED BY THE COMMISSION OF THE EAEC ON 25 NOVEMBER 1960 TO PERFORM THE DUTIES OF HEAD OF THE INTERNAL SERVICES DEPARTMENT . ON 5 MARCH 1963 HE WAS INTEGRATED AS A PRINCIPAL ADMINISTRATOR IN GRADE A5 AND ON 13 OCTOBER 1964 PROMOTED TO GRADE A4 . HE HAS BROUGHT AN APPEAL AGAINST THE DECISION OF THE COMMISSION OF 22 SEPTEMBER 1965 REJECTING HIS REQUEST FOR RECLASSIFICATION IN GRADE A3 .

THE APPLICANT MAINTAINS THAT HE IS ENTITLED TO RECLASSIFICATION IN ACCORDANCE WITH THE PRINCIPLE OF THE CORRESPONDENCE BETWEEN DUTIES AND GRADES UNDER ARTICLE 102 AND ANNEX I TO THE STAFF REGULATIONS OF OFFICIALS AND REQUESTS THAT HE BE RECOGNIZED AS HEAD OF DIVISION . IN THE ALTERNATIVE, HE CLAIMS DAMAGES CORRESPONDING TO THE DIFFERENTIAL ALLOWANCE PROVIDED FOR IN ARTICLE 7(2 ) OF THESE REGULATIONS .

THE COMMISSION MAINTAINS THAT THIS APPEAL IS INADMISSIBLE ON THE GROUND THAT AFTER BEING CLASSIFIED IN GRADE A5 BY THE INTEGRATION DECISION OF 5 MARCH 1963 MR SCHRECKENBERG DID NOT APPEAL AGAINST THIS DECISION WITHIN THE PERIOD PROVIDED FOR IN ARTICLE 91 OF THE STAFF REGULATIONS AND ONLY SUBMITTED HIS COMPLAINT THROUGH OFFICIAL CHANNELS ON 8 JULY 1965 .

P.549

THE PRINCIPAL CLAIM FOR CLASSIFICATION IN GRADE A3

IT IS COMMON GROUND THAT NO APPEAL WAS MADE WITHIN THE PERIOD PROVIDED FOR IN ARTICLE 91 OF THE STAFF REGULATIONS AGAINST THE DECISION OF 5 MARCH 1963 CLASSIFYING THE APPLICANT IN GRADE A5 AND NOTIFIED TO HIM ON THE SAME DAY .

THE APPLICANT MAINTAINS, HOWEVER, THAT AT THE TIME OF HIS INTEGRATION IT WAS WELL KNOWN THAT THE COMMISSION WAS TO CARRY OUT A SUBSEQUENT RECLASSIFICATION OF ITS OFFICIALS AFTER ORGANIZING ITS DEPARTMENTS INTO DIRECTORATES AND DIVISIONS . NOT ONLY WAS THE UNIT ENTRUSTED TO THE APPLICANT DESIGNED A ' DIVISION ' IN A REPORT FROM HIS SUPERIORS, BUT ON 4 APRIL 1963 MR FUNCK, THE DIRECTOR-GENERAL FOR ADMINISTRATION AND PERSONNEL, INFORMED THE COMMISSION THAT APPOINTMENTS OR PROMOTIONS TO GRADE A3 WERE BEING POSTPONED TO ALLOW THE POSTS AT THIS LEVEL TO BE CONSIDERED LATER ON THE BASIS OF THE STRUCTURE OF EACH DIRECTORATE . WHEN THE COMMISSION ON 31 MARCH AND 8 APRIL 1965 MADE CERTAIN PROMOTIONS TO GRADE A3 WITHOUT HAVING PUBLISHED THE VACANT POSTS BEFOREHAND IT IN FACT RECLASSIFIED THE SERVANTS CONCERNED AFTER ORGANIZING THE ADMINISTRATIVE UNITS INTO DIVISIONS . SINCE THE COMMISSION HAD THUS ORGANIZED ITS DEPARTMENTS, AS IS ALSO SHOWN BY THE MANNER IN WHICH THEY ARE SET OUT IN THE GUIDE DES COMMUNAUTES EUROPEENNES FOR 1965, THE DECISION OF 8 APRIL 1965 CONSTITUTED AN IMPORTANT NEW FACTOR CAPABLE OF CAUSING THE PERIOD FOR BRINGING APPEALS TO START TO RUN AFRESH .

AS, HOWEVER, THE CLASSIFICATION DECISION OF 5 MARCH 1963 WAS MADE WITHOUT CONDITIONS OR RESERVATIONS IT MUST BE REGARDED AS FINAL IN THE ABSENCE OF MATERIAL FACTORS WHICH CLEARLY AND CONSISTENTLY INDICATE ITS PROVISIONAL NATURE . THE COMMUNICATION FROM THE DIRECTOR-GENERAL FOR ADMINISTRATION AND PERSONNEL TO THE COMMISSION CANNOT ALONE CONSTITUTE EVIDENCE THAT THE COMMISSION HAS ACCEPTED HIS RECOMMENDATIONS SINCE THE COMMISSION IS IN NO WAY BOUND BY PROPOSALS MADE BY ITS DEPARTMENTS AND THE SILENCE OF THE MINUTES ON THE POINT CANNOT BE INTERPRETED AS ACQUIESCENCE . EVIDENCE BY WITNESSES TAKEN BY THE COURT IN CASE 34/65 AND PRODUCED WITH THE CONSENT OF THE PARTIES AT THE HEARING IN THE PRESENT CASE DOES NOT SHOW THE CLASSIFICATION DECISION OF 5 MARCH 1963 TO HAVE BEEN PROVISIONAL . IT DOES NOT APPEAR THAT WHEN THIS CLASSIFICATION WAS MADE THE COMMISSION HAD DOUBTS ON ITS ASSESSMENT OF THE DUTIES CORRESPONDING TO THE POST IN QUESTION . MOREOVER, NO IMPORTANCE CAN BE ATTACHED TO THE FACT THAT IN A REPORT DRAWN UP BY THE APPLICANT'S SUPERIORS ON 13 JUNE 1962, THAT IS, BEFORE THE CLASSIFICATION DECISION OF 5 MARCH 1963 WAS MADE, THE APPLICANT'S DEPARTMENT WAS DESCRIBED AS A ' DIVISION '. THE FACTORS RELIED ON ARE, THEREFORE, NOT SUFFICIENT TO DEPRIVE THIS DECISION OF ITS DEFINITIVE CHARACTER, IN PARTICULAR AS THE MINUTES OF THE 196TH MEETING OF THE COMMISSION OF 22 JANUARY 1963 REFER TO A ' GENERAL CONSIDERATION OF THE CLASSIFICATION OF THE POSTS HELD BY SERVANTS TO WHOM THE STAFF REGULATIONS APPLY '.

P.550

FURTHERMORE, THE APPOINTMENT OF VARIOUS SERVANTS TO GRADE A3 ON 8 APRIL 1965 CANNOT BE REGARDED AS A FACTOR CAPABLE OF CAUSING TIME TO START TO RUN AFRESH FOR THE PURPOSES OF AN APPEAL AGAINST THE CLASSIFICATION DECISION OF 5 MARCH 1963 . IN PARTICULAR THE APPLICANT IS WRONG TO BASE HIS OBJECTION ON THE APPOINTMENT TO GRADE A3 OF ONE OF THE HEADS OF DEPARTMENT OF HIS OWN DIRECTORATE WHO HAS PREVIOUSLY HELD THE SAME GRADE, AND ON THE IMPLIED CONVERSION OF THE CORRESPONDING ADMINISTRATIVE UNIT INTO A DIVISION . MR SCHRECKENBERG HAS NOT CONTESTED THIS APPOINTMENT AND HAS NOT SOUGHT TO HAVE IT ANNULLED . HIS APPEAL IS SOLELY DIRECTED TO OBTAINING FROM THE COURT A DECISION THAT HE MUST BE CLASSIFIED IN GRADE A3 AS FROM 1 JANUARY 1962, THAT IS TO SAY, WITH THREE YEARS' RETROACTIVE EFFECT . THE SUBJECT MATTER OF THE DISPUTE IS THUS THE CLASSIFICATION DECISION OF 5 MARCH 1963 ITSELF . THE APPOINTMENTS MADE IN 1965, WHICH ARE NOT RETROACTIVE, IN NO WAY AFFECT THE APPLICANT'S CLASSIFICATION . NEITHER THE VARIOUS PROMOTIONS MADE SINCE 1963 NOR THE POSSIBLE OMISSION OF THE FORMALITIES CONCERNING THE PRELIMINARY NOTIFICATION OF VACANT POSTS CAN HAVE A RETROACTIVE EFFECT ON THE DECISION CLASSIFYING THE APPLICANT AND THE PERIOD FOR APPEALING AGAINST IT CANNOT BE MADE TO START TO RUN AFRESH . THE MANNER IN WHICH THE DEPARTMENTS OF THE COMMISSION WERE SET OUT IN A ' GUIDE DES COMMUNAUTES ' DOES NOT JUSTIFY THE INTERPRETATION SUGGESTED BY THE APPLICANT .

THE APPEAL MUST THEREFORE BE DECLARED INADMISSIBLE .

THE ALTERNATIVE CLAIM FOR DAMAGES

THE APPLICANT PUTS FORWARD AN ALTERNATIVE CLAIM FOR DAMAGES, PRESENTED IN THE GROUNDS OF THE APPEAL AS REPARATION FOR A WRONGFUL ACT OR OMISSION ON THE PART OF THE COMMISSION IN THAT IT FAILED TO DESIGNATE MR SCHRECKENBER'S DEPARTMENT AS A DIVISION, AND IN THE CONCLUSIONS OF THE APPEAL AS ' A SUM CORRESPONDING TO THE DIFFERENTIAL ALLOWANCE PROVIDED FOR IN ARTICLE 7(2 ) OF THE STAFF REGULATIONS OF OFFICIALS, WHICH SHOULD HAVE BEEN PAID AS FROM 1 JANUARY 1962 '.

ALTHOUGH A PARTY MAY TAKE ACTION BY MEANS OF A CLAIM FOR COMPENSATION WITHOUT BEING OBLIGED BY ANY PROVISION OF LAW TO SEEK THE ANNULMENT OF THE ILLEGAL MEASURE WHICH CAUSES HIM DAMAGE, HE MAY NOT BY THIS MEANS CIRCUMVENT THE INADMISSIBILITY OF AN APPLICATION WHICH CONCERNS THE SAME ILLEGALITY AND HAS THE SAME FINANCIAL END IN VIEW .

IN FACT, IN THE ALTERNATIVE HEAD OF HIS APPEAL, THE APPLICANT IS NOT CLAIMING THAT DAMAGES BE ASSESSED IN THE LIGHT OF THE ACTUAL DAMAGE WHICH HE CLAIMS TO HAVE SUFFERED BY REASON OF THE DUTIES WHICH HE PERFORMED, BUT IS SEEKING THE AWARD OF A SUM EQUAL TO THE DIFFERENCE BETWEEN THE SALARY PAID AND THAT WHICH HE WOULD HAVE RECEIVED FROM 1 JANUARY 1962 IN GRADE A3 TO WHICH HE CLAIMS TO BE ENTITLED .

THE PRINCIPAL APPLICATION CONCERNING THE CLASSIFICATION FIXED BY THE DECISION OF 5 MARCH 1963 HAS BEEN HELD TO BE INADMISSIBLE, SINCE THE PARTICULARS ALLEGED TO BE IMPORTANT NEW FACTORS HAVE BEEN FOUND INCAPABLE OF CALLING THIS DECISION IN QUESTION, WITH THE RESULT THAT THEY CANNOT BE REGARDED AS CONSTITUTING A WRONGFUL ACT . THIS DECISION IS FINAL . LASTLY, BY BASING HIS CLAIM ON ARTICLE 7(2 ) OF THE STAFF REGULATIONS THE APPLICANT DRAWS ATTENTION TO THE REAL OBJECT OF HIS CLAIM WHICH IS NOT SO MUCH TO MAKE GOOD DAMAGE SUFFERED AS TO EXTEND THE BENEFIT OF THIS PROVISION CONCERNING PAYMENT OF A SALARY FOR A TEMPORARY POSTING, WHICH THE APPLICANT WAS PRECLUDED FROM CLAIMING SINCE HE WAS OUT OF TIME .

FOR ALL THESE REASONS, THE ALTERNATIVE CLAIM MUST BE DECLARED INADMISSIBLE .

THE APPLICANT HAS FAILED IN HIS APPEAL . UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS . MOREOVER, UNDER THE FIRST SUBPARAGRAPH OF ARTICLE 69(3 ), WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL THE COURT MAY ORDER THAT THE PARTIES PAY THEIR OWN COSTS IN WHOLE OR IN PART . THE CIRCUMSTANCES OF THE CASE MAY HAVE MISLED THE APPLICANT AS TO THE FINAL NATURE OF THE DECISION OF 5 MARCH 1963 . FOR THIS REASON IT IS APPROPRIATE TO ORDER THE DEFENDANT TO PAY HALF THE COSTS INCURRED BY THE APPLICANT .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 59/65 AS INADMISSIBLE;

2 . ORDERS THE DEFENDANT TO BEAR ITS OWN COSTS AND ONE HALF OF THE COSTS INCURRED BY THE APPLICANT .