61972J0028

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OFFICIALS - TASKS - LEVEL HIGHER THAN GRADE - RECLASSIFICATION - ACCEPTANCE - RIGHT - ABSENCE

( STAFF REGULATIONS, ART . 5 )

FULFILMENT BY AN OFFICIAL OF TASKS ON A LEVEL HIGHER THAN HIS GRADE CAN BE A FACTOR TO BE BORNE IN MIND IN CONNECTION WITH PROMOTION BUT DOES NOT GIVE HIM THE RIGHT TO BE RECLASSIFIED .

IN CASE 28/72

LEANDRO TONTODONATI, AN OFFICIAL OF THE EURATOM JOINT RESEARCH CENTRE AT ISPRA, RESIDENT AT 18 VIA BLIGNY, VARESE, REPRESENTED BY GIUSEPPE PELLICINI, OF THE VARESE BAR, AND BY VICTOR BIEHL, OF THE LUXEMBOURG BAR, HAVING CHOSEN HIS ADDRESS FOR SERVICE IN LUXEMBOURG IN THE CHAMBERS OF ME BIEL AT 71, RUE DES GLACIS, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER GIORGIO PINCHERLE, ACTING AS AGENT HAVING CHOSEN ITS ADDRESS FOR SERVICE C/O ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR ANNULMENT OF THE DEFENDANT' S IMPLIED REJECTION OF THE APPLICANT' S CLAIM TO BE RE-GRADED IN CATEGORY B,

1 BY LETTER OF 31 JANUARY 1972, ADDRESSED TO THE PRESIDENT OF THE COMMISSION, THE APPLICANT, AN OFFICIAL AT THE JOINT RESEARCH CENTRE AT ISPRA, SUBMITTED A CLAIM TO BE CLASSIFIED IN CATEGORY B, WITH RETROSPECTIVE EFFECT FROM FEBRUARY 1971;

NOT HAVING RECEIVED ANY REPLY TO THE CLAIM, HE BROUGHT THE PRESENT ACTION BEFORE THE COURT, UNDER THE SECOND PARAGRAPH OF ARTICLE 91 ( 2 ) OF THE VERSION OF STAFF REGULATIONS APPLICABLE AT THAT TIME .

ON ADMISSIBILITY

2 THE COMMISSION MAINTAINS THAT THE ACTION IS INADMISSIBLE ON THE GROUND THAT THE IMPLIED REFUSAL, ARISING FROM THE PRESIDENT OF THE COMMISSION' S SILENCE, WAS NO MORE THAN CONFIRMATION OF A PREVIOUS DECISION WHICH WAS NO LONGER OPEN TO CHALLENGE .

3 THE APPLICANT STATES THAT A NEW DEVELOPMENT, WHICH SUBSTANTIALLY CHANGED THE CIRCUMSTANCES IN WHICH HIS GRADE WAS FIXED WHEN HE WAS FIRST ESTABLISHED, TOOK PLACE IN JANUARY 1971 .

IN THIS CONNECTION HE POINTS OUT THAT THE OFFICIAL IN CHARGE OF THE INVENTORY SECTION FELL ILL IN JANUARY 1971 AND DID NOT RESUME HIS PREVIOUS DUTIES ON RECOVERY, HAVING BEEN TRANSFERRED TO ANOTHER DEPARTMENT IN AUGUST 1971 . THE LATTER' S ASSISTANT HAS ALSO DEFINITELY CEASED TO BELONG TO THE INVENTORY SECTION; AS A CONSEQUENCE, THE APPLICANT IS CARRYING OUT ALL THE TASKS OF THE SECTION BY HIMSELF .

4 DURING THE ORAL PROCEEDINGS, THE DEFENDANT ADMITTED THAT THESE STATEMENTS WERE CORRECT . THE SERVICE HAS, IN FACT, BEEN RE-ORGANIZED, RESULTING IN AN EXTENSION OF THE SCOPE OF THE APPLICANT' S DUTIES . IT WAS, THEREFORE, IN ORDER FOR THE LATTER TO ASK THE COMMISSION TO REVIEW HIS POSITION IN THE ADMINISTRATION IN VIEW OF THE CHANGES WHICH HAD TAKEN PLACE IN THE STRUCTURE OF THE DEPARTMENT TO WHICH HE BELONGED .

5 THE IMPLIED REJECTION OF HIS CLAIM CONSTITUTES, THEREFORE, AN ACT ADVERSELY AFFECTING THE APPLICANT .

HIS APPLICATION IS, ACCORDINGLY, ADMISSIBLE .

MERITS

6 THE STOCK INVENTORY SECTION AT ISPRA CONSISTED OF THREE MEMBERS OF STAFF, ONE CLASSIFIED IN GRADE B1, ANOTHER, HIS ASSISTANT, IN GRADE B4, AND THE THIRD, THE APPLICANT, IN CATEGORY C1 .

WHEN THE FIRST TWO CEASED TO BE EMPLOYED IN THE INVENTORY SECTION, THE APPLICANT TOOK SOLE CHARGE OF THE SECTION .

7 THE APPLICANT CONTENDS THAT, AS HE HAS CONTINUED TO DISCHARGE THE RESPONSIBILITIES PREVIOUSLY BORNE BY THESE TWO OFFICIALS, HE IS NOW HEAD OF THE SECTION AND SHOULD BE RE-CLASSIFIED IN THE CAREER-BRACKET B2/B3 .

8 THOUGH THE ADMINISTRATION CANNOT COMPEL AN OFFICIAL TO FULFIL TASKS ON A LEVEL HIGHER THAN HIS GRADE, THE FACT THAT HE AGREES TO FULFIL THEM CAN BE A FACTOR TO BE BORNE IN MIND IN CONNECTION WITH PROMOTION, BUT DOES NOT GIVE HIM THE RIGHT TO BE RE-CLASSIFIED .

IN ANY CASE, ACCORDING TO ARTICLE 45 OF THE STAFF REGULATIONS, PROMOTION TO A HIGHER CATEGORY CAN ONLY ARISE FROM AN APPOINTMENT AS A RESULT OF COMPETITION .

9 IT IS CLEAR FROM EXPLANATIONS SUPPLIED BY THE COMMISSION THAT IT WAS NOT ONLY CATEGORY B POSTS OF THE INVENTORY SECTION WHICH WERE TRANSFERRED TO ANOTHER DEPARTMENT; THE CORRESPONDING BUDGETARY ENTRIES HAD BEEN TRANSFERRED AS WELL .

THERE WERE, THEREFORE, IN THE SECTION NO POSTS VACANT IN CATEGORY B WHICH COULD HAVE BEEN FILLED BY COMPETITION .

10 THE ACTION IS THEREFORE UNFOUNDED .

11 THE APPLICANT HAS FAILED IN HIS ACTION .

UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY MUST BEAR THE COSTS .

NEVERTHELESS, UNDER ARTICLE 70 OF THE RULES, COSTS INCURRED BY THE INSTITUTIONS IN CONNECTION WITH ACTIONS BY STAFF OF THE COMMUNITY REMAIN THE RESPONSIBILITY OF THE COMMUNITY .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE ACTION;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .