I — The facts

II — The application for annulment (Case 7/56)

Admissibility

Jurisdiction of the Court

Examination of the substance

Scope of the decisions in issue

Withdrawal of individual decisions

Interpretation of Article 78 of the Treaty

Application thereof to the present case

Final conclusion

III — The applications for damages (Cases 3 to 7/57)

Admissibility

Liability

Reparation for the damage

Amount of the injury

Final conclusion

(1)

A ‘scale’ comprising 13 grades, divided into steps, had been adopted by the Committee of Presidents at its meeting on 9 May 1955, at the same time as the corresponding scale of salaries was fixed;

(2)

On 25 November 1955, the Bureau of the Assembly had taken a whole series of decisions as a consequence of the re-organization of the departments of the Secretariat of the Common Assembly, which for the purposes of this opinion may be summarized as follows:

Mr Genuardi, Grade 2, Step 1,

Mr Cicconardi, Grade 3, Step 5,

Mrs Steichen, Grade 8, Step 5

Mrs Couturaud, Grade 9A, Step 5,

Miss Algera, Grade 9A, Step 3.

1.

The Committee of Presidents held its fourteenth meeting, at the end of which it declared that the Staff Regulations were definitively adopted with regard to the three institutions other than the Council of Ministers; in regard to the latter the Committee took note of the reservation expressed by its President in his statement to the effect that he was obliged to consult his colleagues before giving his definitive agreement. The minutes add:

‘As regards the procedure to be followed in drawing up the annexes, the Committee decides that the administrations of the institutions shall consult each other. At the same time, it specifies that such consultation shall be directed towards harmonizing the provisions, but that it shall not prejudice the discretionary nature of the annexes.’

Among those annexes (which according to the Staff Regulations are considered as falling within the jurisdiction of the institutions), there must appear that same table of posts, drawn up in correlation with the ‘job-description’ list and the classification of those posts in the scale drawn up by the Committee of Presidents.

2.

‘Late in the evening’ of the same day, to use the words of the Assembly, the President of that institution sent to each servant concerned an individual order signed by himself and the Secretary-General approving the application to that servant of the Staff Regulations. In view of the importance of those orders, from which the applicants purport to derive the vested rights upon which they seek to base their arguments, I consider it necessary to set the precise terms of them before the court. For example, this is the one which concerns Miss Algera:

‘The President of the Common Assembly of the European Coal and Steel Community.

Having regard to Article 43 of the Rules of Procedure of the Common Assembly, adopted by the Assembly at its session on 10 January 1953, amended at its sessions on 16 January 1953 and 12 May 1954;

Having regard to the provisions of the rules of Internal Administration of the Assembly, adopted by the Bureau at its meeting on 25 November 1955;

Having regard to the proceedings of the Bureau on 25 November 1955;

Having regard to the written declaration of Miss Algera dated 12 December 1955 to the effect that she wishes to benefit from the application of the Staff Regulations,

ORDERS:

Luxembourg, 12 December 1955.

Signed: G. Pella

President of the Common Assembly

Signed: de Nerée

Secretary General of the Common Assembly’

First, as appears from the minutes of the session of 15 March 1956, the Bureau of the Assembly decided at the end of a meeting in private,

‘to agree to the request of the President of the High Authority with a view to drawing up, with the other institutions, as harmonious a table of posts as possible. This affirmative answer to the request of the President of the High Authority [the minutes add] shall in no way constitute an interpretation of Article 78 of the Treaty and must not entail any prejudice to the autonomy of the decisions of the Bureau of the Assembly, if the effort necessary to reach harmonization proves impossible.’

Secondly, the Committee of Presidents had on 5 March 1956 already ‘taken note of the unanimous intention of the heads of the four institutions to achieve harmonization of the grades and remuneration of the staff in all the institutions of the Community’, and on 29 March 1956 it decided ‘to constitute’ a working party ‘having as its terms of reference’

‘to seek and achieve harmonization between the tables of duties and grades of the different institutions, so as to permit common Staff Regulations for Community staff the annexes thereto and the General Rules to enter into force.’

(1)

The Committee of Presidents and the Assembly were in agreement to undertake the harmonization work and not to implement the Staff Regulations immediately;

(2)

The Assembly formally maintained its position of principle as to its ‘sovereignty’ in this field and reserved all its rights in the event of failure;

(3)

The Committee of Presidents continued to withhold its commitment on this question of principle;

(4)

Even in practice, there remained ‘differences of emphasis’ which were important: the Assembly agreed to take part only in drawing up ‘as harmonious a table of posts as possible’, thus appearing to accept in advance the possibility of certain discrepancies between similar posts in different institutions, which were not however to prevent the implementation of the common Staff Regulations. The Committee of Presidents, on the other hand, expressly made the implementation of the Staff Regulations, including the annexes and the General Rules, subject to the conclusion, that is to say doubtless the complete success of the harmonization work: thus the consequence of failure — which all concerned were determined to avoid at all costs — would have been the implementation of four different sets of Staff Regulations, one for each of the four institutions.

(1)

Meeting of the Committee of Presidents on 15 June 1956. The following appears in the minutes: ‘As regards the Common Assembly, it [the Committee of Presidents] takes note of the statement of the President of that institution to the effect that he will put before the Bureau of the Assembly the proposals or suggestions submitted by the Harmonization Committee [the Delvaux Committee] and will communicate by letter either his agreement or his proposals for amendments, after having contacted the officials of the Assembly for the purpose of seeking a possible settlement by mutual agreement as suggested by the Committee’. Let me add however that ‘finding that the Special Committee has not received all the elements necessary to enable it to accomplish its task, Mr Delvaux, with the agreement of this colleagues, Mr Rasquin, Mr Vanrullen and Mr Finet, asks that their mission be terminated and that they be relieved of their functions’.

(2)

Meeting of the Bureau of the Common Assembly on 19 June 1956. I quote paragraphs (2) and (3) from page 4 of the minutes, as they seem to me the most important:

(3)

Meeting of the Bureau on 22 June 1956. Of the minutes of this meeting I would only note the fact that the Bureau intended to content itself with the agreement of the majority of the staff, not of all its servants.

(4)

On 27 June 1956, a letter was sent by Mr Vanrullen, in the name of the President, to each of the employees affected by the harmonization measures. It appears necessary to me to place before the Court the essential passages of that letter:

‘Dear Madam [I quote throughout from the letter sent to Miss Algera],

By an order of 12 December 1955, you were brought within the ambit of the Staff Regulations and appointed to the grade of assistant I.

The Bureau of the Common Assembly proposes to implement, in the near future, the Staff Regulations common to the four institutions, which were adopted by the Committee of the Four Presidents on 28 January 1956.

According to the provisions of those Staff Regulations and the annexes thereto, and in particular the salary scale and the table of correspondence between grades and posts, the duties which you perform correspond to grade II and to category C (assistant II). Consequently, taking your seniority into account, your establishment, in accordance with Article 2 (2) and the transitional provisions of the Staff Regulations, will be effected on the following terms:

pp. the President of the Common Assembly,

Signed: Emile Vanrullen,

Vice-President.’

(5)

On 7 July, a certain number of employees refused to accept the terms in the letter of 27 June and insisted quite simply that the decision of 12 December 1955 should be kept in force.

(6)

On 12 July, in a letter again signed in the name of the President of the Common Assembly, Mr Vanrullen wrote the following:

‘Dear Madam,

By a letter of 7 July 1956 you informed me of your disagreement with the terms on which your establishment could be effected under the provisions of Article 2 (2) and the transitional provisions of the Staff Regulations.

Under these circumstances, and in so far as you persist in the point of view expressed in your aforementioned letter, when the Staff Regulations are implemented by the Bureau of the Common Assembly, it will be possible to apply them to you only as a temporary member of staff, subject to a one-year contract, renewable twice within the limits laid down by Article 2 (3) of the Staff Regulations.

I ask you to inform me before 21 July whether these proposals meet with your agreement. You will find enclosed a specimen contract.

If I have not received your reply by 20 July I shall have to take it that you renounce the benefit of the provisions of the order notified to you on 12 December 1955 and shall accordingly presume the nullity of your renunciation to the benefit of the provisions of your contract, of the Provisional Staff Rules of the Common Assembly of 1 July 1953 and of the application of the table of rank and salary drawn up by the Bureau at its meeting on 27 October 1954, which will once more apply to you.

Your contract, which in the normal course of events would have expired on 31 December 1955, will be prolonged a final time from 1 January 1956 to 31 December 1956 at the salary of 2754 EPU (European Payments Union) units of account, fixed by the Bureau at its meeting on 25 November 1955.

Yours faithfully,

pp. the President of the Common Assembly,

Signed: Emile Vanrullen,

Vice-President.’

(7)

On 19 July, each of the applicants sent a letter persisting in his position.

(8)

On 10 October 1956, a ‘communication’ bearing the number 56/12 was addressed to the staff, informing it of the decisions adopted by the Bureau on 1 October 1956 the essential parts of which are the following:

(9)

On 15 October 1956, Communication No 56/13 was addressed to the staff. Its first sentence is worded as follows:

‘The remuneration for the month of October 1956 for those servants who accepted the proposals made in the context of harmonization has been calculated on the basis of the new classification.’

(10)

Finally, on 30 November 1956, the newly-appointed Bureau decided, ‘whilst keeping the contested decisions in force’, to grant the applicants the suspension of application which they had requested.

Either the argument consistently defended by the Assembly and its President, to the effect that the Assembly has the power itself to draw up the table showing the correspondence of posts, is accepted: in that case, the orders of 12 December would be lawful, but the subsequent individual decisions, taken by virtue of a new correspondence table (in fact the freely accepted harmonization table), would also be lawful. It would seem that this is the meaning of Mr Pella's statement, quoted above, to the Bureau on 1 February 1956 in which he says that ‘the Bureau's decision to accept Annex I which is common to the four institutions [let it not be forgotten that that annex comprises the correspondence table] is a legal basis on which certain amendments to the orders notified on 12 December 1955 to the majority of the staff may be undertaken’;

Or an argument more restrictive of the Assembly's powers, to the effect that the orders of 12 December 1955 were illegal, is accepted: and in that case, according to the opinion which I have set out, those illegal orders could also be withdrawn, although on completely different grounds. Then it would remain only to verify that the fresh decisions were indeed taken after valid action on the part of the Committee of Presidents and therefore were not in their turn also illegal, like the first decisions.

Either the Assembly had the power itself to draw up the correspondence of posts to grades, the scale of which had been drawn up by the Committee of Presidents; when it had done so and when it had subsequently, and according to this argument validly, carried out the individual classification of the servants by appointing them to a specific grade and step, it had exhausted its power and was not entitled to reverse those individual decisions in favour of a fresh classification of posts modifying the first classification;

Or the Assembly was not alone in holding that power: it had to share it with the Committee of Presidents. In that case, the individual decisions were illegal and could be revoked.

(1)

In presentation, Article 78 seeks to reconcile the principle of the autonomy of the institutions with the unity of the Community, which alone has legal personality: this is the system of estimates, drawn up by each institution as regards its own expenditure, but consolidated in the general estimate.

(2)

In substance, it seeks to reconcile the right of each institution freely to ensure the organization and functioning of its departments, which is the corollary of the principle of autonomy, with the necessity for sufficiently effective financial and budgetary supervision.

(a)

It is ensured first of all by the power given to the Committee of Presidents to ‘adopt’ the general estimate, which is the sum of the four estimates: the term ‘adopt’, which is less strong than, for example, ‘approve’, but stronger than terms such as ‘enact’ or ‘implement’, clearly implies a power of supervision sanctioned by the power to ‘refuse to adopt’. The choice of such an expression clearly demonstrates the concern to reconcile the needs of administrative autonomy with the no less important needs of the supervision of expenditure by an authority which is external to the institution but which by its very composition appears as a manifestation of the Community.

(b)

However, this power which is exercised at the last stage of the preparation of the budget of expenditure is rightly seen to be incapable on its own of ensuring real budgetary supervision with any degree of effectiveness. That is easily understood, since the budget of expenditure comprises only administrative expenditure, the greatest proportion of which is represented by staff expenditure, which, in a national budget, would be almost entirely in the nature of obligatory expenditure, that is, expenditure which merely represents in figures the effect of pre-existing rights. It is well known that the only effective supervision in this area is preventive and must deal essentially with the fixing of the staff complement and the salaries and other pecuniary allowances. For this reason the Committee of Presidents was given responsibility for fixing in advance the number of servants, the scales of their salaries, allowances and pensions, and the extraordinary expenditure, in short all the items which make up the bulk of the administrative expenditure. Of course, this power also must be exercised in a way which is compatible with the autonomy of the institutions, as I have described it.

(A)

The first argument was developed with great conviction and much talent by the chairman of the Common Assembly's Accounts and Administration Committee in a document reproduced at length by Professor de Soto in his note. The argument consists in denying the Committee of Presidents any power of decision and supervision in relation to the Common Assembly's expenditure, on the basis of the ‘sovereignty’ of that Parliamentary Assembly.

I shall not spend long on that argument, not only because it conflicts with the basic provisions of the Treaty, as I stated them a moment ago, but also because subsequently the distinguished chairman ceased to propose it in that absolute form. The mistake which in my opinion he makes results — once again — from the misuse of the word ‘sovereignty’ which is at present the cause of many misunderstandings and a source of many misfortunes. Leaving aside the matter of agreement on the meaning of the term, if anybody is ‘sovereign’ in the Treaty, it is the Community, and the Community alone; the Assembly is no more ‘sovereign’ than the other institutions: like the other institutions, it is only ‘sovereign’ to the extent to which it falls to it to exercise the powers which have been conferred upon it by the Treaty, and to tell the truth, among those powers the power of decision occupies a very limited place: this system may be regrettable, but the Court can only make a finding of fact. Fortunately, moreover, the Assembly has found ways other than the exercise of powers of decision to carry out its task of supervising the executive and to play its part in the progress of the Community. For this reason I prefer to use the term ‘autonomy’ when speaking of the institutions rather than the word ‘sovereignty’.

In fact, on reading the report it clearly appears that its author's preoccupation, in which he doubtless echoes his colleagues, is to preserve the freedom of the Assembly in regard to ‘the creation of the services which the Assembly finds necessary in order duly to acquit itself of the rights and duties of supervision which are incumbent upon it’; referring to the Committee of Presidents, he states a little further on: ‘that Committee can certainly not intervene, because the Assembly would thereby be impeded in the creation of the services which it deems necessary’. As will be seen shortly, I think that on this point the freedom of the institutions must indeed be acknowledged.

(B)

The second argument which in my view must be set aside is that which gives an exhaustive scope to the clause appearing in the second subparagraph of Article 78 (3): ‘However, the number of the Community's servants and the scale of their salaries, allowances and pensions, where not fixed under some other provision of this Treaty or by rules laid down for the implementation thereof, and any extraordinary expenditure, shall be determined in advance by a Committee, etc.’.

It has been argued that the ‘rules laid down for the implementation’ of the Treaty which are mentioned here apply in particular to the ‘Rules of Procedure’ of the Assembly (Article 25), to the ‘Rules of Procedure’ of the Council (Article 30), to the ‘General Rules of Organization adopted by the High Authority’ (Article 16) and, as regards the Court, to the rules which the Court is empowered to adopt in order to lay down the Staff Regulations of its staff (Article 16 of the Protocol on the Statute of the Court). It is argued that under these different provisions, each of the four institutions has sovereign power to fix the Staff Regulations of its staff, even to the extent to which the rules contained in the Staff Regulations cover the subjects set out in the second subparagraph of Article 78 (3), that is the staff complement, the scale of salaries and the pension scheme. It is argued that the Committee of Presidents could exercise its powers only if one or other of the institutions did not use its right in this connexion or used it only partially. In short, it is argued that Article 78, including even the provisions of the second subparagraph of Article 78 (3), cannot be regarded as obstructing the principle of the autonomy of the institutions, and that the Committee of Presidents has only a coordinating role to play. I do not share that opinion. On this point I am in complete agreement with Professor de Soto in thinking that the clause in question must be seen as no more than a mere safeguard clause. It is indeed clear that if a particular provision of the Treaty (or of rules laid down for the implementation of such a provision delegating powers to it for that purpose) had conferred power on an authority other than the Committee of Presidents to fix the staff complement or the amount of the remuneration of certain servants, that special provision would have taken precedence over the general rule contained in Article 78. However, in that case it can only be a special provision. If the case should arise, this could be true of Assistant Rapporteurs if the rules governing their service, which are laid down by the Council on a proposal from the Court (Article 16), happened to include a provision making the Council responsible for the fixing of their salaries: since the decision in this connexion would then belong to an institution other than that which employs the persons concerned, the supervision required by Article 78 would exist, and ‘the exception to the exception’ would take on its full meaning: in that case there would no longer be any need for the external authority in the shape of the Committee of Presidents.

In short, a hypothetical situation such as this would involve the solution adopted by the Treaty itself in relation to the Members of the High Authority and the Judges, Advocates General and Registrar of the Court of Justice, the pecuniary rules governing whose service are laid down by the Council under a special provision of the Treaty (Article 29). Moreover, Article 15 of the Statute of the Court provides that ‘The salary, allowances and pension of the Registrar shall be determined by the Council, acting on a proposal from the Committee provided for in Article 78 (3) of this Treaty’ (that is, the Committee of Presidents), which clearly shows that, even in a case where authority was conferred upon the Council, owing to the particularly important nature of the duties carried out, it was considered necessary to make the Committee of Presidents a party to the drawing up of the pecuniary rules governing the service of the person entrusted with those duties: how could it be imagined that, in all the other cases in which there is no guarantee of an external decision, it would depend only upon the will of the institutions to escape the supervision of the Committee of Presidents? That proposition appears to me absolutely untenable. I thus come to the conclusion that Article 78 gives the Committee of Presidents certain powers of decision (moreover, the wording is perfectly clear on this point), but that since that attribution of authority derogates from the principle of the autonomy of the institutions, it must, like any exception, be strictly construed, taking into account the proper purpose of that article, which is & financial and budgetary provision.

I must now draw the inferences from that conclusion.

The first inference — which is doubtless not indispensable for the purpose of reaching a decision in the present action, but which I consider it necessary to mention in order to have an overall picture of Article 78 — is that the Committee of Presidents does not possess any authority of its own to lay down the whole of the Staff Regulations of servants of the Community. In support of the contrary opinion, reliance has frequently been placed upon the provisions (which are even expressly referred to in the current Staff Regulations) of the third paragraph of Article 7 of the Convention on the Transitional Provisions, which is in the following terms: ‘Until the Committee provided for in Article 78 of the Treaty [that is, the Committee of Presidents] has decided upon the size of the staff of the Community and has laid down Staff Regulations, the personnel required shall be engaged on a contractual basis’.

However, in my view it cannot be accepted that such a provision, of a purely transitional nature (and it is found in fact in the Convention on the Transitional Provisions) had the purpose, and can have the effect, of permanently conferring on the Committee of Presidents a power which it was not acknowledged to have by Article 78 of the Treaty, the latter constituting the basic provision in this regard, and which would also (as has been seen) be extraneous to the purpose of that article.

In reality, Article 7 of the Convention does not have — and could not have — any other purpose than to enable the Community to ‘get started’, if I may use that expression, before the financial procedures provided for by the Treaty, in particular Article 78, had had time to come into play. That is the reason why the second paragraph of Article 7 provides for repayable advances by the Member States until such time as the levy can be collected, since under Article 78 the revenue can be collected only by virtue of the general estimate, which itself must be adopted by the Committee of Presidents. Similarly the fixing of the staff complement and of the scale of salaries, allowances and pensions is within the competence of the Committee of Presidents. The purpose of the third paragraph of Article 7 of the Convention is simply to enable indispensable staff to be recruited immediately without waiting for the decisions which the Committee of Presidents must eventually take within the framework of the powers which it derives from the second subparagraph of Article 78 (3) of the Treaty. There is a close and obvious connexion between the two provisions, and when, repeating the wording of Article 78 of the Treaty on the point, Article 7 of the Convention states: ‘Until the Committee provided for in Article 78 of the Treaty has decided upon the size of the staff of the Community and has laid down Staff Regulations, the personnel required shall be engaged on a contractual basis,’ it can have in view only the pecuniary provisions of the Staff Regulations as described in Article 78. Neither Article 7 of the Convention nor Article 78 of the Treaty purported to come to any decision on the legal nature of the relationship which was to arise in the future between the Community and its servants or to draw a distinction between public law Staff Regulations and contract. Once again, it is a question of purely financial provisions.

Therefore, it appears that in law each institution remains free to fix the Staff Regulations of its servants, on a contractual or any other basis (the concept of staff regulations is not incompatible with that of contract, as is proved by the system in force in many international organizations); it remains free to do so, except on such points as have been reserved to the authority of the Committee of Presidents (the fixing of the staff complement and of remuneration).

Let me point out that, from this point of view, the provisions of Article 16 of the Protocol concerning the Court, under which the Staff Regulations of the officials and other servants of that institution ‘shall be laid down by the Court’, appears as an application of the general rule and not as an exception derogating by implication from a provision of a general and permanent nature contained in the Convention on the Transitional Provisions}

Of course, the independence of each institution with regard to drawing up the Staff Regulations of its servants in no way prevents the Committee of Presidents from playing a coordinating role, for it is highly desirable in a Community to arrive at common Staff Regulations, especially when all the administrative authorities have their seat in the same city, and one can only welcome the result obtained in this connexion; but, in my opinion, those common Staff Regulations must be considered as having been freely accepted by each institution, and from a strictly legal point of view (I am not speaking of the political point of view) it would doubtless have been more correct to implement four separate sets of provisions, each containing the few differences acknowledged to be necessary, instead of being obliged to relegate those differences to annexes.

In fact, the result of this is the paradoxical situation that the rules in regard to which the institution is autonomous (that is, the whole of the Staff Regulations proper) form the subject-matter of a single set of provisions purporting to be ‘drawn up by the Committee of Presidents’, whereas the points in regard to which that Committee has a power of its own are relegated to annexes ‘drawn up by each institution’ (Article 62). The least one can say is that such a presentation is apt to cause confusion amongst those who are not forewarned … Having thus established (1) that the Committee of Presidents possesses certain powers of decision, and (2) that those powers are however limited to financial and budgetary aspects and must be combined with the strictly administrative powers retained by the institutions, it remains for me to consider which matters, in a complex operation such as that which took place to effect the establishment of the staff within the structures of the new Staff Regulations, came under one sphere of authority and which came under the other: this brings me to the heart of the dispute.

In the remarkable opinion submitted by the Assembly, Professor de Soto of the Faculty of Law of the University of Strasbourg gave a very apposite analysis, isolating the various operations necessary to attain what is referred to as establishment (p. 12 et seq.). I can do no better than to refer to that analysis, which however I shall supplement somewhat.

In logical, if not chronological, order, those operations are the following:

Doubtless, such an analysis is somewhat artificial, inasmuch as each of the operations is not necessarily effected by a special decision, but in my opinion it enables it to be seen more clearly what is incumbent respectively upon the Committee of Presidents and upon the institution, if reference is always made to the distinction between those matters which come under the administrative power and those which come under the budgetary supervision.

On No (I) (Drawing up of the general Staff Regulations), I have already stated my view and I shall not cover the point again.

On No (2) (Organization of the service), it is my opinion that this comes within the institution's own authority: this is a fundamental point, and the Assembly rightly attaches great importance to it, because it must be seen to constitute the essential guarantee of what I have referred to as the principle of the autonomy of the institutions.

On No (3) (Organization of the departments corresponding to the organization of the services), it is my opinion that this also is a power of the institution, which is a necessary corollary of the foregoing.

On No (4) Table of grades and steps and, where necessary, division into categories), the authority of the Committee of Presidents is beyond dispute; moreover, it has exercised it.

The same applies to No (5) (fixing of the salary pertaining to each of the grades and steps).

I thus come to operations (6) and (7). It seems to me that the distinction between them, which was very well brought out by Professor de Soto, constitutes the key to the problem: in my opinion, operation No (6) (drawing up of the ‘job-description’) comes under the authority of the institution, whereas operation No (7) (classification of each post in the scale of grades, taking account of the job-description) comes under the authority of the Committee of Presidents. In fact, in the former case, it is a matter of describing the nature of the task required of the holder of the post, and the institution is the sole judge in this matter; in the latter case, it is a matter of assessing ‘what the job is worth’, taking that description into account, and that is indeed a budgetary power: when Article 78 gives the Committee of Presidents the power to fix ‘the scale of their salaries’ (the salaries of servants), it is clearly a question of doing so with regard to the nature of the posts which they occupy and by comparison with the other posts, and not solely in terms of an abstract, arbitrary salary scale. That is the only way in which the Committee can carry out its role and achieve what has been described as harmonization, that is, to make the same classification in relation to posts which are of the same kind and which correspond exactly to the same tasks in two different institutions. In short, that solution seems to me to be the only one which complies both with the letter and the spirit of Article 78. Moreover, it seems that the first paragraph of Article 25 of the Community Staff Regulations must indeed be taken to mean this when it states: ‘The list of posts corresponding to each grade in each of the categories and in each of the services shall be determined in accordance with Article 78 of the Treaty’.

For the sake of completeness, I should like briefly to finish with my list:

As regards operation No (8) (fixing of the number of posts per grade, always taking into account the job-description), I think that, for the same reasons, this is one of the powers of the Committee of Presidents; it is clear that, if it is done in advance, a merely general determination of the staff complement of a whole institution can only be arbitrary and exclusive of any serious budgetary supervision. In that case, the Committee could once again think of exercising a certain supervision only when it had occasion to ‘adopt’ the general estimate; but for the reasons which I have already stated at the beginning of my opinion, such supervision would be futile in practice, and moreover it would not be the supervision required by Article 78, since that article formally provides that supervision must be undertaken in advance. Doubtless, the supervision of the staff complement by grade must be reconciled with respect for, and the need for, the organization of the service as conceived by the institution; the operation of the service must not be made impossible in practice under the pretext of economies and budgetary supervision, which would constitute a sort of ‘misuse of powers’, but that is a problem pertaining to all financial supervision in all the administrations in the world, and it must usually be resolved in a spirit of reciprocal understanding, of the existence of which there can be no doubt in this Community: to deny that power, on the other hand, might prevent any rational achievement of a scheme of economies if ever it should prove necessary, or, what is worse, might reduce it to overall abatements proportional to the budget of each institution, thus perpetrating injustice under an appearance of equality of sacrifice. On this point, however, I must admit that a solution contrary to the one which I favour seems to have been accepted by the Staff Regulations in the second paragraph of Article 25.

Finally, operation No (9), which relates to individual measures of establishment, can clearly come only under the authority of the institution alone.

Having thus in a sense ‘dissected’ the operations and apportioned the corresponding spheres of authority, I have now to consider a difficult problem of which Professor de Soto was well aware, namely the way in which authority is to be exercised in those respective spheres. In fact, as I have said, it is not possible in practice to demand that each of those operations should give rise to separate decisions, and on the other hand it must not be forgotten that the Committee of Presidents, although having powers of its own, is not an institution of the Community. It exercises its powers over internal matters, but it is doubtful whether it can publish or notify decisions which are directly applicable to third parties and enforceable of themselves: at all events, it has never done so up to the present time. It follows from this that decisions which it may take must be incorporated into the regulations or individual decisions of the various institutions upon which they are binding, and the legality of the measures adopted by the Committee of Presidents can be discussed, should the need arise, only ‘through’ them, as is the case in this action. Moreover, it could not be otherwise, since the only basis for litigation in this field is Article 58 of the Staff Regulations, which gives jurisdiction to the Court only over any dispute ‘between the Community and any person to whom the Staff Regulations apply’, and since under Article 6 of the Treaty ‘the Community shall be represented by its institutions’ of which the Committee of Presidents is not one.

For those reasons, in his opinion Professor de Soto suggests a formula for a ‘concurring opinion’, which to tell the truth is very ingenious. He suggests that the Committee of Presidents exercises the powers which it derives from Article 78 through such a process.

Despite its flexibility, I do not think for my part that that process can be accepted, because a concurring opinion allows only a negative power, a right to veto, to be exercised. It is my opinion that, in the cases in which it has authority, the Committee of Presidents must exercise its authority fully. For example, when it determines ‘the number of the Community's servants’, it must fix that number positively and not confine itself to refusing its assent to proposals made to it until those proposals comply with its wishes. Similarly with the problem before the Court: when dealing with the proposals of the institutions involving the classification of posts into various grades, it must be able where necessary to alter that classification and draw up a new table itself, provided only that it does not alter the job-description of the posts without the agreement of the institution.

That does not prevent the final decision which it arrives at from being notified to the institutions, which must then comply with it by drawing up the table which must appear in the annexes and which may alone be relied upon against third parties.

However, if it was open to me to express a wish in this connexion, I should say that in my opinion it is most desirable that stricter formal habits should be adopted both by the Committee of Presidents and by the institutions. It could be desired in particular that, at the end of its proceedings, the Committee of Presidents should draw up formal decisions, duly notified to the institutions and separate from the minutes. For their part, the institutions should, where appropriate, refer to the decisions thus adopted by the Committee of Presidents in their own decisions; when their own decisions take the form of regulations (such as the annexes to the Staff Regulations and the tables incorporated therein), they should be published either in the Official Journal or, failing that, by being posted up on the premises, or by any other means of publication having the effect of validly and officially informing the staff of them. In that way the nature of the activity of the Committee of Presidents as being internal to the Community could be reconciled with the need for a scheme clearly exhibiting that each was exercising its re-spective powers. Thus Professor de Soto's preoccupations with regard to litigation could be laid to rest, since only the decisions of the institutions would be subject to appeal, which would not of course prevent the parties from discussing the legality of every part of those decisions, including such parts as might originate with the Committee of Presidents.

In short, I am of the opinion that the individual orders of 12 December 1955 were illegal, in that they were issued before the Committee of Presidents had exercised its power to draw up the correspondence between posts and grades, and that for that reason they could be withdrawn.

It remains to be considered whether the further decisions of the Assembly are themselves valid from the point of view of prior action on the part of the Committee of Presidents. In that connexion, it does seem to emerge from the whole of the proceedings of the Committee of Presidents which took place during 1956 that, having prompted the drawing up of a harmonization table (which was the work of the Delvaux Committee), the Committee of Presidents adopted it, if only by finding that the institutions were in agreement over that table. To tell the truth, the table was never formally approved, since the Committee of Presidents was concerned above all — and quite properly so — to attain agreement between the institutions, and since certain points remained in abeyance. None the less, signs of the exercise on its part of a power of decision of its own can occasionally be seen: for example, the following appears in the minutes of the 19th meeting on 15 June 1956:… (3) As regards the Court of Justice, the Committee of Presidents agrees that the administrator should be classified in Grade 3 under the title ‘Administrator of the Court of Justice acting as Assistant Director’. At all events, it is not disputed that the fresh classification of the five applicants, which moreover they refused, corresponded to the part of the harmonization table upon which agreement had been reached and which had been approved by the Committee of Presidents.

That the Court should dismiss Application 7/56; and

That the costs should be borne by the applicants.

(A)

Liability— The applicants did not specify the legal basis upon which they were founding their applications for damages. In support of their case, they referred only to the seventh paragraph of Article 34 of the Staff Regulations of the Community, which provides for the granting of certain pecuniary allowances to servants assigned non-active status following the abolition of posts. That provision is clearly not applicable of itself in the present case: in my opinion (and apparently also in that of the applicants, when they speak of “analogy”, it can be used only as an indication in assessing the damage suffered by the persons concerned if it is considered that they were the victims of a wrongful breach of the link between them arid the administration. No express reference was made to Article 40 of the Treaty.

(a)

On the contractual ground, it cannot be found that there is any liability. In fact, the alleged breach could only be that which occurred in July or October 1956. As the Court has clearly seen, no breach of a contractual link was involved at that time: it was a question of a unilateral decision relating to the establishment of servants under the new Staff Regulations, by which the Assembly altered the classification as effected by the orders of 12 December 1955. The contract was renewed, whereas the first decision (the one upon which the applicants rely as having created rights in their favour) terminated it as from 31 December 1955: it cannot be said in these circumstances there was a breach of the contract, and moreover the pecuniary allowances received by the applicants from 1 January 1956 are clearly much higher than the amount of the termination allowances provided for in the contracts. Finally, the decision in Case 1/55, Kergall v Common Assembly, does not apply here, since there was no refusal to re-new the contracts, and no refusal to apply the Staff Regulations to the persons concerned in disregard of the “eligibility” therefor which they had acquired before the Staff Regulations came into force.

(b)

Therefore the true — and only — legal ground is that of a wrongful act or omission based on Article 40. The question is, “what wrongful act or omission?”

(B)

Reparation for the damage — In this connexion, the question is the extent to which the wrongful act or omission caused the applicants an injury in respect of which they are entitled to reparation.

First of all, there can be no question of considering as an injury capable of conferring entitlement to reparation anything which relates to the effects of the decision of July-October 1956 (at least, if the Court, as I submit, considers it to have been lawful) that is, the consequences of the lowering of the applicants' administrative status on account of the new classification which was applied to them (and which they refused). No one can be entitled to the perpetuation of an illegal situation the illegality of which has been duly acknowledged, or to pecuniary compensation for being deprived of the advantages which would have resulted in the future from such a situation: in reality that would be to sanction vested rights resulting from the initial illegal decision, whereas, ex hypothesi, there were no such rights because of the very illegality of that decision. It appears to me that no doubt is possible on this point.

The only question which was open to discussion in this connexion concerns the retroactive regularization which the administration could have contemplated effecting, that is, if it had caused repayments to be made corresponding to the difference between the salaries pertaining to the new classification and the salaries actually received pursuant to the first decision. In that case, it would have been possible to think of offsetting those repayments by the grant of an allowance for a wrongful act or omission. However, that question does not arise, since the administration did not act in that way, and following the new classification which was refused by the persons concerned, refrained from establishing them, re-applied their contract and did not issue any repayment order against them.

Does that mean that the applicants have suffered no damage in respect of which they are entitled to reparation? I do not think so. It is clear that they have suffered what could be termed a perturbation in their lives due to the course of action adopted by the Assembly, which I have described and which I see no purpose in recapitulating. I think that, in the circumstances in which the events of this case have taken place, this must be seen as an undoubted injury, albeit one which is difficult to assess.

(C)

Amount of the injury— If account is taken of all the measures adopted by the Assembly with regard to the persons concerned, it can only be considered that the material parts of the injury have been to a large extent made good. In this connexion, it is enough to point out that not only, as I have said, was no repayment demanded from them, but (1) they received the offer of the continuation for two years of the pecuniary status resulting from the first classification in the form of a differential allowance; (2) in fact, despite the refusal of this offer and their being kept under contract, that contract was declared to have been extended until 31 December 1956, and (3) finally, by virtue of the suspension of implementation granted by the administration, the persons concerned still continue today to benefit from the Staff Regulations resulting from the orders of 12 December 1955. Moreover, it must also be pointed out that no evidence whatever has been submitted concerning the reality and importance of the ‘offers’ which the applicants allegedly received from outside the institution and which they were allegedly led to refuse by the more advantageous classification on which they believed they were entitled to count.

On the other hand, I think that there is in this case a non-material factor, the effects of which are not capable of being fully compensated by the material advantages granted by the Assembly, however great they may be. I think that the Court must itself sanction the course of action adopted by the Assembly, and that a judgment dismissing the applications, on whatever grounds it was based, would not fully attain that result. For that reason, borrowing a concept which finds frequent application in the case-law of certain member countries, I think that the Court could order the Assembly to pay symbolic damages of 1 franc.

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That the Common Assembly should be ordered to pay each of the applicants the sum of 1 franc;

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That the Court should dismiss the other conclusions in the applications;

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That the costs should be borne in their entirety by the Common Assembly.