OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 25 FEBRUARY 1975 ( 1 )

Mr President

Members of the Court,

The Facts

Mr Van Reenen was recruited by the Commission of Euratom on 1 March 1961 in Grade B2 and attained Grade B1 on 1 November 1963.

In October of the following year, at the Petten Establishment, he was called upon to perform the duties of Head of the Local Affairs Office. With effect from 1 July 1969 he became Head of the Office of Internal Administration and Staff Matters, under the Department for Personnel and Administration.

The Head of that department — at that time Mr Van Westen — was an official in Grade A4.

Several months later, in February 1970, Mr Van Westen was promoted to Head of the Administration, Finance and General Technical Services Division. As regards his previous duties he was not replaced by a Category A official.

As a result, a proportion of those previous duties were, as from that time, undertaken by Mr Van Reenen, although with his consent.

Notwithstanding this fact Mr Van Reenen was not officially given a temporary posting as replacement for his former departmental Head, since Article 7 of the Staff Regulations does not allow an official temporarily to occupy a post in a category higher than that in which he himself is classified.

Such was indeed the case here: the applicant was classified in Category B; he could not lawfully be given a temporary posting in Category A.

However, since this situation persisted — it lasted, in any event, up to the time when these proceedings were instituted

the applicant felt he had a right to be appointed to Category A in view, as he said, both of the level of the duties which he was in fact undertaking and of his university qualifications.

In 1962 and again in 1963 he submitted requests to the Director-General for Personnel and Administration in these terms. His requests were rejected.

In April 1966 the applicant submitted a further request to the Head of the Petten Establishment that he should be appointed to Category A. He stated that he was willing, if this was unavoidable, to submit to an internal competition.

If is however an accepted fact that access to a career bracket in a higher category is open, in view of Article 45 (2) of the Staff Regulations, only to an official who is successful in a competition organized for the purpose of filling posts in that category.

The applicant, who continued to undertake duties relating to Category A, waited a number of years before applying for two internal competitions organized for filling posts in'Category A. Thus he entered Competition COM/A/264, in November 1971, and then Competition COM/576/70, for a post of administrator in career bracket A7/A6 at the Joint Research Centre at Ispra.

Unfortunately, Mr Van Reenen was not even admitted to the oral tests for the first competition. The selection board for the second competition refused even to include him on the list of eligible candidates, judging his knowledge to be insufficient.

In spite of these setbacks the applicant did not consider himself beaten; on 4 October 1972 he again requested that he be appointed to Category A.

At first he obtained no reply to this request and it was only after he had made a complaint through official channels, to which I shall return shortly, that, nearly a year later, an express decision of rejection was finally taken, on behalf of the Commission, on 10 September 1973.

On 14 December 1973 Mr Van Reenen brought an action before the Court of Justice, containing conclusions in respect of two issues, claiming:

—	first, that the Court should annul the decision of rejection and, consequently, decide that the applicant was entitled to access to Category A;

—	secondly, that the Commission should be ordered to make good the material and non-material damage resulting from the Commission's omission to effect his reclassification in Category A, at least as from 1 February 1970.

In respect of this head of claim the applicant therefore relies on a wrongful act or omission, resulting in non-contractual liability on the part of the Community. He does not calculate the amount of damage incurred, and in his first statement of claim merely requests that he be granted a provisional allowance of BF 200000.

Admissibility

The Commission first entered an objection of inadmissibility against this action, based upon the provisions of Articles 90 and 91 of the Staff Regulations, introduced by Regulation No 1473/72 and applicable to requests and complaints submitted after 30 June of that year.

In the defendant's view the applicant's initial request, submitted on 4 October 1972, was rejected by an implied decision which resulted from the Administration's failure to reply and which took effect at the end of a period of four months following the date of the request.

This period therefore came to an end on 5 February 1973 at midnight.

Pursuant to the new Article 90 of the Staff Regulations, the applicant, faced with this implied decision of rejection, should have submitted a complaint to the appointing authority within a period of three months, beginning on 6 February 1973.

The complaint should therefore have been lodged by 6 May at the latest.

Although the applicant did indeed submit a complaint, the latter, according to his own statement, was not delivered to his immediate superior until 9 May 1973, that is to say, three days after the end of the period imposed by Article 90.

I will leave aside the discussion which has taken place between the parties regarding the existence of the complaint or the probability that it was submitted on that exact date.

In my opinion the complicated and formalistic procedure for preliminary complaints through official channels set out in Article 90 of the Staff Regulations and the penalty of inadmissibility of an appeal to the Court which, according to Article 91, is attendant upon failure to observe this extra-judicial procedure serve, in the final analysis, no other purpose than to delay the settlement of proceedings relating to Community public servants.

The Agent of the Commission has clearly shown that whether the timelimit is calculated by the method based upon the date of submission of the complaint by the official or by the method which takes account solely of the dates on which the request and later the complaint were received by the competent authority, there can be no doubt that in this case the applicant should be regarded as out of time and that his action, in accordance with a strict interpretation of procedural law, should be dismissed as inadmissible.

This is not however the solution which I would urge you to adopt. In my opinion, the equitable administration of justice demands rather that the Court should examine the substance of the case.

This examination has convinced me that the action is not well-founded and I would suggest that the Court should not confine itself to a consideration of the question of admissibility, but should give a definitive ruling on the case.

Besides, has not the Commission itself invited you to do so, since it has stated before the Court, through its representative, that it was content to leave the question of admissibility to the wisdom of the Court?

Discussion of the Substance of the Case

I think it unnecessary to trouble the Court with a lengthy consideration of the first submission contained in the application. This submission is based on the alleged lack of a statement of reasons in the contested decision.

Strictly speaking, two interpretations are possible:

—

First, if the applicant is thereby contesting the implied decision resulting from the failure of the Administration first of all to reply to his initial request, it is clear that such a submission is irrelevant. It is in the nature of an implied decision of rejection that it does not contain a statement of reasons. However, it should be noted here that the application contains no submission seeking the annulment of this implied decision.

—

Secondly, if — and this I believe is how we must understand him — the applicant is thereby contesting the express decision taken by the Commission on 10 September 1973 we need only re-read this decision to discover that it does indeed state its reasons since, by recalling to the applicant's notice the fact that his failure in the competition prevents him from being appointed to Category A, the Commission was clearly invoking the unequivocal provisions of Article 45 (2) of the Staff Regulations.

The applicant himself recognizes this in his reply, admitting that he was not unaware that he could not be appointed following Competition COM/576/70, since he did not possess the level of knowledge of Italian legislation required of candidates for the post of administrator at Ispra.

On the one hand, therefore, it is quite clear that the disputed decision did indeed contain a statement of reasons; I would even add that the statement of reasons it contained was legally correct. On the other hand, it may be inferred from the applicant's admission that he does not wish to pursue the submission put forward by him in his original application.

However, in his reply, he puts forward, for the first time, what we may hardly call a legal submission; he maintains in effect that the decision of 10 September 1973 is ‘non-existent’, alleging that the Commission did not reply to certain points or arguments which he had raised in his initial request in 1972.

Members of the Court, it is scarcely necessary for me to recall that the concept on non-existence of an administrative decision, always supposing that this concept is still legally acceptable, can — at most — refer only to measure vitiated by a clear and basic illegality, for example by reason of complete lack of competence.

In any event, it cannot usefully be invoked against a decision the legality of which is indeed in dispute but on grounds which cannot cast doubt on its existence as a legal measure.

Secondly, if the applicant is complaining that in its reply of 10 September 1973 the Commission did not give a detailed reply to all the points which he had raised in his request, I find this line of argument irrelevant.

It is common ground that the object of his request was his appointment to Category A. To this request the Administration gave a reply, albeit in the negative.

As we have noted, it gave reasons for this refusal. But it was certainly under no obligation to reply point by point to the applicant's allegations and arguments. The rejection of the request in itself constitutes a decision. It is the applicant's right to contest the legality of that decision, but in my view it is frivolous for him to maintain that it is non-existent.

It should moreover be borne in mind that, in the precise context of the Staff Regulations, an implied decision resulting from the failure of the Administration to reply to a request submitted to it is indeed a decision against which an appeal may be brought, and which may possibly be annulled, but it is certainly not non-existent.

It should also be added that the applicant is not claiming that the Court should annul the implied decision of rejection resulting from the failure to reply to his request of 1972. That implied decision has therefore become definitive and, consequently, unassailable.

In fact, Members of the Court, the only question in dispute is whether Mr Van Reenen may rely upon a right to direct appointment to Category A, in the absence of a competition.

The Court has several times had occasion to rule on questions of this nature, and its case-law in this area is well-established.

As I explained in Case 28/72, Tontodonati (Judgment of 12 July 1973, [1973] ECR 779), a distinction must be made between two problems:

—

On the one hand, each institution possesses the power to organize its own departments, to adapt them to new requirements and to such modifications as may occur in its own powers, and also to take account of changes which may occur in techniques and administrative management. One of the consequences of this power of internal organization is the power to modify the classification of certain posts, according to the procedure laid down for this purpose, when the duties relating to those posts are themselves affected by modifications made in the organization of the department;

—	On the other hand there is the problem of the individual rights which officials enjoy under the Staff Regulations by which they are governed.

The Staff Regulations undeniably confer on each official the right to demand that the duties entrusted to him correspond to the post of which he is the legal occupant as well as to his grade in the hierarchy (Labeyrie, Case 16/67, Judgment of 11 July 1968, Rec. 1968, p. 445)

Thus the prime objective of the principle of correspondence between post and grade is to ensure equality of treatment between officials (Boursin, Case 102/63, Judgment of 17 December 1964, [1964] ECR, 708).

However, the fact that an official is in a position to undertake, even for a lengthy period, duties appropriate to a post in a higher category than his own does not give him any unconditional right to be appointed to that category.

Article 45 (2) of the Staff Regulations in fact expressly makes access to a higher category subject to success in a competition.

Moreover, the applicant is clearly in complete agreement with the foregoing since he twice attempted to make use of the opportunity of an internal competition to obtain appointment to a grade in Category A. It is no doubt very much to be regretted that he did not succeed. But however inconvenient and uncertain the competition procedure may be it nevertheless constitutes, in many national administrations and in any event, as we know, in the Community Administration, the least questionable and in the last analysis the most impartial method of selection.

As the Court stated in its judgment of 12 July 1973: ‘Though the Administration cannot compel an official to perform duties corresponding to a grade higher than his own, the fact that he agrees to perform them may be a factor to be borne in mind in connexion with promotion, but does not give him the right to be reclassified’.

I would therefore urge you to reaffirm this solution, which corresponds to an exact and moreover necessary application of the Staff Regulations in force.

However, it still remains for us to reject certain conclusions submitted — as a subsidiary matter — in the applicant's reply.

The applicant there requests the Court to order the Commission to organize, for his own benefit, an individual competition, as it could allegedly be said to have undertaken to do by publishing Vacancy Notice COM/534/73.

This is not a fresh submission but in fact a new head of claim, which is manifestly out of time and, consequently, certainly inadmissible.

It would in any event fail on the basis of the case-law arising from the judgment given in Morina (Case 11/65, [1965] ECR 1024) according to which: ‘Assessment of the expediency or necessity of organizing a competition lies within the exclusive domain of the appointing authority. In these circumstances, the Court cannot order a competition to be held or re-held without encroaching upon the prerogatives of the administrative authority’.

Finally, we can dispose very briefly of the claim for damages submitted in the original application.

As we have seen, this claim is based on the Commission's alleged wrongful act or omission in refusing or omitting to reclassify the applicant in Category A with effect from 1 February 1970.

This claim for damages, which was submitted for the first time in the application to the Court, was not preceded by any prior request or complaint through official channels. According to the Commission it is inadmissible pursuant to Articles 90 and 91 of the Staff Regulations. I am inclined to share this view, but disposed to overlook the obstacle of inadmissibility.

It is my opinion that the wrongful act or omission relied on cannot be discerned in the alleged unlawful failure by the Commission to reclassify the applicant directly without a competition. As I have already stated, reclassification can be effected, in view of Article 45 (2) of the Staff Regulations, only after a competition.

The Administration was therefore under no obligation to effect a direct reclassification of the applicant without a competition. Moreover, had it done so, it would have been guilty of an illegal act and would have taken a decision which could have been challenged by other officials, particularly by those eligible to fill the post in Category A to which Mr Van Reenen would have been appointed.

In short, the refusal meted out to the latter cannot render the Commission liable.

The same would be true if the applicant were also relying on the fact that the Commission did not organize an individual competition since, as I have previously had occasion to say in this connexion, according to your own case-law the Administration is under no obligation to hold such a competition and is sole judge of the expediency of doing so.

In my view therefore it would serve no purpose to discuss the reality of the alleged damage since there is no basis upon which liability may be attributed.

It is therefore my opinion that the Court should:

—	dismiss the action;

—	order the parties to bear their own costs, pursuant to Article 70 of the Rules of Procedure.

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( 1 ) Translated from the French.