OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 10 JUNE 1982 ( 1 )

Mr President,

Members of the Court,

I — Introduction

1.

The Bosnians case with which I am concerned today provides the Court with an opportunity of clarifying the legal position of the numerous officials whose post or grade ( 2 ) is described in footnotes in the list of posts attached to the various parts of the budget in accordance with Article 6 of the Staff Regulations as “in a personal capacity”.

As appears from the list of posts attached to the file and published in the Official Journal on 31 December 1980, the number of such grades “in a personal capacity” in the Commission even then amounted to 69. However, it appears that, apart from the Court of Auditors, the other institutions also have a number of such grades in a personal capacity. Only in the Court of Justice are the words “for the duration of their appointment” added to that description in some casei. These are always established posts within the meaning of Article 1 of the Staff Regulations.

It is naturally particularly in the interests of all those concerned, including the applicant in this case, to obtain greater clarity concerning this legal situation. However, it may perhaps also be considered desirable on other grounds, as appears from the extract in the file from a repon of the predecessor of the present Court of Auditors, the Audit Board, on the accounts for the financial year 1976. At page 33 of that report the Audit Board states that the recognition of grades in a personal capacity is not regulated by any provision of the Staff Regulations and that the significance and exact scope of such budgetan authorizations should at least be clarified. At page 34 the Audit Board observes that it is incompatible with the judgments of the Court in Joined Cases 20 and 21/63, Maudei v Commission of the EEC [1964] ECR 113, and Joined Cases 79 and 82/63, Reynier and Erba, v Commission of the EEC [1964] ECR 259, to assign to Grade A 3 in a personal capacity officials who according to those judgments are entitled to that grade. The only classifications in a personal capacity which the Audit Board considered to be compatible with Community law were those which resulted from Regulation No 259/68 of the Council (Official Journal, English Special Edition 1968 (I), p. 30.

2.

With reference to those views of the Audit Board, I consider it desirable with a view to this dispute to call to mind first of all the three principal categories of grades in a personal capacity in the Commission. First, reference must be made to the abovementioned category of officials who were “promoted” to Grade A 3 as a result of the judgments of the Court cited above and in connection with the entry into force of the Staff Regulations. Such promotion was in a personal capacity. Partly because there was none the less promotion in that case, it is understandable that the persons concerned did not lodge a complaint, but along with the Audit Board one may naturally wonder whether the implementation in this manner of the judgments of the Court was in fact compatible with those judgments. The second and somewhat larger category of grades in a personal capacity arose from Regulation No 259/68 of the Council, which was issued in connection with the merger of the institutions, and involved, again as has appeared in these proceedings, a demotion as regards the duties of the persons concerned, who retained their grade in a personal capacity. Those officials were therefore placed at a disadvantage in particular in relation to the responsibilities given to them, which did not correspond to their grade. Such derogation from Article 7 of the Staff Regulations was, however, provided for by the regulation in question. The third and largest category of officials with a personal grade came into being, as appears from the information provided during these proceedings, in connection with the first enlargement of the Communities. The applicant in these proceedings belongs to this category. From the answers to questions put by the Court during the oral procedure in this case, there is no evidence to indicate that clear criteria were applied in the transfer of officials to a post to which the only corresponding grade in the list provided for in Article 6 of the Staff Regulations is a grade in a personal capacity, albeit otherwise of the same level. In this dispute it is not denied that the new post to which the applicant was assigned at that time was compatible with his grade, A 3. Nor does he deny that in relation to the new post of adviser to which he was assigned by transfer in 1980. If the three abovementioned categories are compared with one another, it is clear that the first category in fact improved its financial position. The second category did not lose financially, but did lose in terms of the responsibility of the duties which it carried out, yet it could not raise an objection on the ground of the abovementioned regulation. The third category, to which Mr Bosmans belongs, was transferred in accordance with Article 7 of the Staff Regulations, that is to say, at the same grade and to a post which corresponded to such a grade; yet. like the grades of the two other categories, that grade was described as being “in a personal capacity” in the list provided for in Article 6 of the Statí Regulations. The description “in a personal capacity” therefore seems to relate to very different categories of officials, whose interests are affected in very different ways by the application of that description. For the sake of completeness I would also observe that there is a fourth, probably smaller category, as appears from the judgment of the Court in Case 14/79, Loebtsch v Council [1979] ECR 3679, at p. 3692. That case related to a “discretionary promotion having regard to (his) personal merits and probably to the fact that he was at the end of his career”. In that case, the applicant's duties remained duties which corresponded to Grade A 3. It seems to me to be the only case which may with perfect correctness in every respect be described as “in a personal capacity”.

3.

Before I turn to the actual dispute, a few general remarks concerning the terminology under discussion seem to me to be appropriate. In the Staff Regulations the terms “(permanent) post” and “grade” are of particular importance. The term “personal grade” or a similar term is, as has been stated, used in particular in the list of posts appended to the section of the budget provided for in Article 6 of the Staff Regulations but not in the regulations themselves. The term used in the list appended to the budget plays a central role in these proceedings. The question is, however, whether or not a. possible difference between a “budgetary” concept of “post” and a functional concept of “post” (to which a budgetary and a functional idea of “grade” would correspond) is important in the Staff Regulations. According to Euler (Europäisches Beamtenstaiut, Kölner Schriften zum Europarecht, Volume 4 A) the term “post” does not in fact always have the same meaning in the Staff Regulations. Sometimes, particularly in Articles 1 and 6 and also by implication in Article 4, it has a clearly budgetary significance. So far as Article 1 is concerned, Euler is supported by the judgment of the Court in Case 18/63, Wollatt (née Schmitz) v EEC [1964] ECR 85, where it was stated that: “This concept only covers the posts expressly prescribed as permanent, or described in a similar manner, in the budget of the Community.” That view was recently confirmed in paragraphs 9 and 10 of the Court's judgment of 19 November 1981 in Case 106/80, Fournier v Commission [1981] ECR 2759, in which reference was made to the Court's judgmem of 1 February 1979 in Case 17/78, Deshormes v Commission [1979] ECR 189. The most recent judgment of the Court which has been cited clearly underlines the difference between the budgetary and the functional concept by pointing out that a temporary agent in the functional sense may very easily hold a permanent post in the budgetary sense. The judgment further underlines the fact that in Article 6 of the Staff Regulations also the concept of “post” has a purely budgetary significance. On the other hand, according to Euler, in Article 5 of the Staff Regulations the same term clearly has a functional meaning, which sets out the dunes, obligations and powers of officials op. cit., at p. 61). In my opinion, the same functional significance must be attributed to the concept of post in Article 7 of the Staff Regulations, which is of primary significance in this dispute in addition to Anieles 1 and 5 and Annex I, Pan A, to the Staff Regulations. So far as the connection between the budgetary and the functional concept of post (and the corresponding budgetary and functional concepts of grade) is concerned, it should first be mentioned, as has already been stated, that the budgetary concept also has its foundation in the Staff Regulations as interpreted by the Coun of Justice. Therefore the difference described above cannot be equated with the difference between a budgetary concept of post and the concept under the Staff Regulations. Moreover, one may wonder, as the Audit Board did, whether the concept of “personal grade” in the list of posts appended to the budget pursuant to Article 6 of the Staff Regulations is compatible with the Staff Regulations. The applicant in this dispute takes the view that it is not, and the Audit Board also appeared at least to have serious doubt in that regard in its repon on the accounts for the financial year 1976. Secondly, however, it must be noted in relation to the difference described that the budgetary and functional concepts of post (and the corresponding concepts of grade) in the Staff Regulations are by no means totally separate from one another, as the Commission suggested during the proceedings. The availability of a corresponding post in the budget constitutes a precondition for the filling of a post in the functional sense (cf. Euler, op.cit., at p. 63). That statement also seems to me to be important for the determination of this case. In particular in so far as the post which is provided in the budget in the framework of Article 6 of the Staff Regulations only with a personal grade could be considered to be classified in a grade lower than the level at which the post must be rated for functional purposes according to Article 5 of the Staff Regulations, the question arises whether that practice is compatible with the Staff Regulations. ( 3 ) It is only in cases arising out of Regulation No 259/68 of the Council that no doubt seems possible as to the compatibility of the budgetary practice with Community law. In the third category of grades in a personal capacity concerned in this case, a personal grade of A 3 in the budgetary sense (even if such terminology is acceptable in relation to the budget) will have to correspond in every case to a post which conforms with Grade A 3 in the functional sense.

4.

The remainder of my opinion will be arranged as follows. In the following section I shall give a short summary of the relevant facts of this dispute, the object of the application and the submissions put forward. For a more detailed summan' I as usual refer to the repon for the hearing. In Section III of my opinion I shall explain why the objection of inadmissibility raised by the Commission should in my opinion be rejected and why on a different ground the application should none the less in my opinion be declared inadmissible by the Court of its own motion. In Section IV I shall briefly consider the substance of the case so far as is necessary in the event of the Court's considering the application to be admissible. Finally, in Section V, I shall make a few closing remarks and set out my conclusions. On the grounds stated at the beginning I shall in the remainder of my opinion also endeavour to clarify the legal position of the officials concerned, in so far as that is important for the determination of this case.

II — Factual background, object and submissions of this application

The applicant entered the service of the Commission on 1 September 1958 in grade A 5. After several promotions he was appointed Head of the Division for Relations with the European Communities and Organizations in Directorate General I, External Relations, on 1 October 1963. Later he was successively entrusted with the leadership of various other divisions in Directorates General I and IX of the Commission.

By a decision of the Commission of 25 May 1973, the applicant was appointed head of the Salaries, Pensions, Missions and Various Allowances Division in Directorate General IX. He discovered from a list of posts published in the Official Journal on 29 November 1973 as provided for in Article 6 of the Staff Regulations and from a detailed list of posts dated 30 October 1973 that his former A 3 post had been replaced by an A 5/A 4 post with Grade A 3 in a personal capacity. He made a request to the appointing authority to have that description replaced once again by the description of the grade which he had held from 1 October 1963 without interruption. After a conversation with his Director General in which he says that he obtained satisfactory assurances, he withdrew his request on 8 February 1974. In that regard I note that from the file on the case it may be seen that the content of that conversation is not totally clear. In mv opinion, in determining the possible relevance of the withdrawal of that application, account must be taken inter alia of the fact that at that time there was not yet any practical experience of the possible effect of holding such a post with a personal grade on chances of promotion or transfer to a “regular” A 3 post.

In any event, partly on the basis of his personal experience in applying for higher or normal duties, after the next Commission decision to transfer him of 23 June 1980, the applicant on 25 July 1980 again lodged a request with the appointing authority, in which he sought a declaration that following his transfer he occupied a post in the “tableau des effectifs” (the list of posts provided for in Article 6 of the Staff Regulations) other than an A 3 post in a personal capacity. It was over a month later, on 4 September 1980, that he received from the Director General of Personnel and Administration official notice of his transfer to a post as an adviser in the Personnel Directorate. That notice was obviously sent out before the Director General had considered his request of 25 July. In any event, on 13 October 1980 the Director General sent him a fresh letter which, according to the Commission's observations during the proceedings, was in fact intended to be a reply to the request, although that is not clear from the letter itself. The second letter reads as follows:

“In the framework of the reorganization of the Directorate General for Personnel and Administration, the Commission decided at its 565th meeting on 25 June 1980 to appoint you as an adviser in Directorate IXA, Personnel, as from 1 August 1980, without altering the post which you occupy.

Consequently, you continue to occupy an A 3 post in a personal capacity in the list of posts.”

On 2 December 1980, that is, within the period prescribed in Article 90 (2) of the Staff Regulations, the applicant then submitted to the appointing authority a complaint against the decision to reject his request.

The Commission failed to reply to that complaint within four months and the applicant accordingly lodged an application with the Court of Justice under Article 91 of the Staff Regulations within the prescribed period of three months.

So far as is important here, his application is “for the annulment of the Commission decision of 25 June 1980 assigning the applicant as an adviser to Directorate IXA, Personnel with effect from 1 August 1980, in so far as it is to an A 3 post in a personal capacity, for a declaration that the post occupied by the applicant is and must be an established A 3 post listed in the Commission's list of posts and also for the annulment of the rejection of his request of 25 July 1980 and of his complaint of 2 December 1980”.

The submissions put forward in support of the application are in summary breach of and/or failure to observe:

(a)	the Staff Regulations of Officials, in particular Articles 1, 5, 7 (1) and Annex 1, Pan A;

(b)	the Commission decision describing, in pursuance of Article 5 (4) of the Staff Regulations, the basic posts and the duties they involve;

(c)	the Commission decision of 10 December 1963 appointing the applicant to Grade A 3 with effect from 1 October 1963;

(d)	principles of law, in particular the principles of equality, good administration and distributive justice.

III — The admissibility of the application

The Commission raises two objections of inadmissibility. First, it claims that the application in reality seeks to challenge the legal position which the applicant has been in since 1 August 1973 at least, and it has therefore been brought outside the prescribed period. That obiection must in my opinion be dismissed because the application is clearly intended to challenge the Commission decision of 25 June 1980 and the rejection of the applicant's complaint of 2 December 1980. It will become apparent only from an examination of the substance of the claim whether in its decision of 25 June 1980 the Commission should have decided on the basis of the Staff Regulations or of other provisions or general principles of law to transfer the applicant and recognize that his post was a normal Grade A 3 post in the budgetary sense. I have set out above the circumstances which fully explain why the applicant did not complain in 1973 or 1974, but that previous history does not seem to me to be important in relation to this application.

Referring to the judgments of the Court in Joined Cases 177/73 and 5/74 Reinarz v Commission [1974] ECR 819 et seq., and Case 35/72, Kiev v Commission [1973] ECR 679 et seq., the Commission considers that the application is inadmissible on the further ground that the contested decision caused the applicant no damage as required by the judgments of the Court. According to those judgments, only legal acts capable of directly affecting a precise legal position or of adversely affecting the morale and the future prospects of the official concerned may be regarded as such. In my opinion, that second objection of inadmissibility should also be dismissed. The applicant correctly states that in his case both the conditions which the Commission derives from the judgments of the Court are fulfilled. He stales inter alia that he himself has repeatedly discovered that applications from officials in Grade A 3 in a personal capacity for a post in the next higher grade or even for a post in a normal Grade A 3 have less chance of succeeding than applications from other officials substantively in Grade A 3. The statistics submitted by the Commission at the Court's request show that that statement cannot be denied on the basis of those statistics. Moreover, without an examination of the substance it is also impossible to dismiss the explanation put forward by the applicant, that the interests of the service in the Commission militate against the abandonment of a post of responsibility covered by Grade A 3 in a personal capacity through promotion or transfer. Finally, he claims to have a nonmaterial interest in a proper definition of his legal position. It will therefore become apparent only from an examination of the substance whether the arguments put forward by the applicant in order to prove that he has an interest should be rejected.

At the same time there is, as I have already stated, another ground on which this application must in my opinion be declared by the Court of its own motion to be inadmissible. On that point I must first of all observe that the application is based on the mistaken assumption that the applicant is appointed by the contested decision to a Grade A 3 post in a personal capacity. On the contrary, by the contested decision of 25 June 1980 he was assigned by transfer whollv in accordance with Articles 5 and 7 of the Staff Regulations to a post in his category or service which corresponded to Grade A 3, namely the post of adviser. That is clear in particular from the notice of 4 September 1980 which was addressed to him and appears in the file. On 13 October it was further stated, in answer to his request of 25 July that his legal position should be clarified by a statement that he held an A 3 post which was not a personal A 3 post, that the assignment had been made without alteration of his post, so that he continued to occupy an A 3 post in a personal capacity in the list of posts. The application relates in essence to that statement of his legal position which in my opinion was carelessly drafted.

The statement is careless because the applicant's post in the functional sense was in fact altered, namely from that of head of division to that of an adviser. The statement is also careless inasmuch as it is not the applicant's post (which is an established post) which is held in a personal capacity, but the grade corresponding to the post in the budgetary sense.

This statement of what the Commission must have meant by its carelessly-drafted letter is important in relation to the question of admissibility, to be examined now, in relation to which it must be assumed that in its letter the Commission itself contributed to confusion over the responsibilities and the different meanings of the word “post” (and the corresponding term “grade”) in the Staff Regulations. As I stated in my introductory remarks, in applying Article 7 the Commission is exclusively bound to assign each official to a post in his category or service which corresponds to his grade in the functional sense. As I also stated in my introductory remarks, this concept of post in the functional sense must be distinguished from the concept of post in the budgetary sense, as the latter is used inter alia in Article 6 of the Staff Regulations. The one is indeed dependent upon the other, in the sense that under Article 6 the budgetary authority is to draw up a list of posts and grades for each career bracket and thereby limits the discretion of the appointing authority in the application of Article 7. However, it is not the Commission but the budgetary authority, at present the Council and the Parliament, which is responsible for the posts contained in the list which may be filled only with a personal grade. It is not necessary for me to consider here whether an application against the budgetary authority would be admissible in this case. It is in my opinion established that the application brought by the applicant against the Commission is in any event not admissible. I draw that conclusion inter alia from the order of the Court (First Chamber) of 4 October 1979 in Case 48/79, Ooms and Others v Commission, [1979] ECR 3121, from which I cite the following passage: “The application is clearly inadmissible. According to Article 91 (2) of the Staff Regulations, actions by officials instituted under Article 179 of the EEC Treaty must be directed against the appointing authority and relate to acts or omissions of that authority which adversely affect the applicants. The action does not satisfy that condition since it relates to the annulment of a Council regulation.” In the same way this application is in my opinion essentially directed against a decision not of the appointing authority but of the budgetan authority.

On the other hand, during the oral procedure the applicant stated that the budgetarv authority took a decision in this case on a proposal from the Commission. However, a similar argument was expressly rejected by the Court in the abovementioned order. During the oral procedure the applicant further argued that the Commission was at least responsible for the application of the said decision of the budgetary authority to his case. In reply it should first be stated that during the proceedings it was established in answer to a question put by the Court that this was a new position and that only posts with a Grade A3 in a personal capacity (in the budgetary sense) were available for it. There is therefore no evidence that the Commission was itself in any way responsible for the specific implementing decision in relation to the grade of the applicant's post in the budget. Secondly, according to the analysis set out above the Commission may not in the framework of the application of Article 7 of the Staff Regulations adopt decisions concerning budgetary posts or grades but may only adopt decisions on assignment to a post in the functional sense which corresponds to the functional grade of the person concerned, regardless of any decision which the budgetary authority may take as to the description of that grade for the purposes of the budget.

Indeed, the Commission must in my opinion be criticized for the carelessness, referred to above, with which it replied to the applicant concerning his legal position. The applicant should in my opinion be regarded by the Commission in the framework of Article 7 of the Staff Regulations simply as an official who is assigned as an adviser in accordance with his grade, A 3. In that regard, its detailed list of posts published in December 1981 is in fact correct, just as its initial notice to the applicant dated 4 September 1980 was in this regard totally correct. As the Commission in its reply of 13 October 1980 thus added to the confusion as to the applicant's legal position instead of clearing it up, it should in my view be ordered to pay the costs, pursuant to Article 69 (3) of the Rules of Procedure.

IV — Substance of the case

As may be clear from the abovementioned remarks, I take the view that in this case clarification of the applicant's legal position may best be achieved by his application's being declared inadmissible on the grounds which I have stated. Indeed, I do not consider that it would be in the interest of the clarification of his legal position for the Commission to be held responsible for aspects of its staff policy which are covered by provisions of the Staff Regulations for whose application in form and in content the budgetary authority is clearly responsible. At the same time, the Court heard during the oral procedure that the Commission's representative was uncertain on that point. He seemed unwilling to deny that the Commission was responsible for the application to an individual case of the list of posts drawn up by the budgetary authority under Article 6 of the Staff Regulations. In the event of the Court's ultimately considering the application to be admissible, it will in my opinion have to be dismissed.

First, as has been stated earlier, the contested decision is clearly based on and constitutes a proper application of Article 7 of the Staff Regulations.

In so far as the decision must on the basis of the statement given in the letter of 13 October 1980 be regarded as giving effect to the list of posts drawn up on the basis of Article 6 of the Staff Regulations, it must be regarded, in spite of the fact that that statement is less accurate, as conferring on the said list the significance which according to my analysis of Article 6 applies to it. It is not the applicant's post but only the corresponding grade which then seems to be held in a personal capacity and in so far as the availability of a post depends upon it, it is a post in that list in the budgetary sense, described above, not a post in the functional sense. I certainly do not consider the budgetary technique concerned to be elegant, in so far as the Audit Board was right in its report, cited above, in stating that the number of posts concerned does not diminish even after the officials concerned have left. It would perhaps be more natural to regularize those posts. However, I do not consider that the budgetary technique concerned is incompatible with the anieles of the Staff Regulations which have been cited by the applicant or that the permanence of his post or his right to be assigned to a post which corresponds to his grade are thereby affected. Moreover it appears from the facts of this case that by that budgetary technique the Commission is afforded a certain freedom of action in establishing new full posts in the functional sense.

However, because of the incorrect interpretation which the Commission later gave to its decision in this case, I also consider that when the application is dismissed, there are exceptional circumstances as provided for in Article 69 (3) of the Rules of Procedure in respect of which the Commission should be ordered to pay the costs.

V — Final remarks and conclusion

From my entire argument it may be apparent that these proceedings involve above all questions of terminology, that is to say, more detailed definition of terms used in the Staff Regulations. Those questions are, however, not without importance in relation to the definition of the legal position of the many persons concerned within and outside the institutions where they work. For the officials who belong to the same category of officials as the applicant with a personal grade it is particularly unsatisfactory in that regard that by that definition — inter alia in the detailed lists of posts which are drawn up annually and are obviously distributed at least within the Commission's departments — they are equated with officials who, under Regulation No 259/68 of the Council, occupy a post which corresponds to a personal rank lower than their own. Moreover, the terminology used departs from the terminology which is used in the list provided for in Article 6 of the Staff Regulations. However, further clarification regarding the legal position of the officials concerned seems to me to be urgently needed for the other reasons stated. That is all the more true because, as has already been pointed out, in my opinion it cannot be totally ruled out that, if the existing confusion over their legal position continues, not only will their morai right to an accurate description be affected but also confusion or doubt may arise in connection with their applications for a post which is not so described. If u should appear that they are in tact in this respect — or again in respect of the rules governing voluntary resignation such as have repeatedly been applied for various reasons in the past — placed at a disadvantage, then such disadvantage would raise questions of legality, which would then have to be examined by the Court of Justice in such cases as occur.

In my opinion, as I have stated, clarity in this matter may best be achieved by a declaration that the application is inadmissible and an order that the Commission is to pay the costs by reasons of the lack of care for which they may be criticized in relation to the terminology used.

I therefore conclude:

1.

The application should be declared to be inadmissible, as it is in reality directed against the budgetary authority and not the appointing authority, whose decision was taken within the framework of its powers under Article 7 of the Staff Regulations and was wholly compatible with such powers and with Anieles 1 and 5 of the Staff Regulations. It follows by implication from my argument that the Commission's actions were not incompatible with any general principle of law such as was relied upon by the applicant, so that that submission must also be regarded as inadmissible. It is not possible to consider in these proceedings whether the budgetary authority has acted in breach of any provision of the Staff Regulations (in particular Article 6 thereof) or of any general principle of law;

2.	The Commission should be ordered to pay the costs on the ground of exceptional circumstances, as provided for in Article 69 (3) of the Rules of Procedure, because it unnecessarily gave an interpretation to the said decision which gave rise to an incorrect view of the applicant's legal position.

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( 1 ) Transiated írom ihr Dutch.

( 2 ) With the Parliament and Commission the post is described as such, whereas with the Council and the Court a is described as the grade, when seems to me more accurate tor reasons which I shall mention later t shall theretore from now on tolion tne terminology of the Councii and the Court.

( 3 ) This is the way in which the Commission interprets the appraisal in the list appended to the budget in its detailed lists ot' posu submitted during the oral procedure in which the applicant's post is marked in the budget as an A 5/A 4 post.