61964J0048

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1 . OFFICIALS - GRADING - TABLE OF DEFINITION OF DUTIES - TERMS NOT CORRESPONDING TO CLEARLY DISTINCT CONCEPTS - DISCRETION OF THE ADMINISTRATION - EXERCISE OF THAT DISCRETION OPEN TO CRITICISM IN A PARTICULAR CASE - MEASURES WHICH CANNOT BE ANNULLED

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 5 )

2 . OFFICIALS - GRADING - NO RIGHT TO A PARTICULAR POST BASED ON AN INTERNAL PROPOSAL FOR THE IMPROVEMENT OF THE SERVICE

1 . CF . PARA . 1, SUMMARY, CASE 10/64, ( 1965 ) ECR 69 .

WHERE THE TERMS OF A TABLE OF DEFINITIONS OF DUTIES DO NOT CORRESPOND TO CLEARLY DISTINCT CONCEPTS, THEIR APPLICATION IS TO A CERTAIN EXTENT WITHIN THE DISCRETION OF THE ADMINISTRATION . THE FACT THAT THE APPLICATION OF SUCH TERMS MAY BE OPEN TO CRITICISM IN A PARTICULAR CASE IS NOT OF ITSELF SUFFICIENT TO MAKE THE MEASURE LIABLE TO BE ANNULLED FOR INFRINGEMENT OF ARTICLE 5 OF THE STAFF REGULATIONS AND OF MEASURES IN IMPLEMENTATION THEREOF .

*/ 664J0010 /*.

2 . CF . PARA . 2, SUMMARY, IN JOINED CASES 109/63 AND 13/64, ( 1964 ) ECR 663 .

AN INTERNAL ADMINISTRATIVE DOCUMENT, INTENDED TO CAUSE THE BUDGETARY AUTHORITY TO IMPROVE THE ORGANIZATION OF A DEPARTMENT CANNOT BY ITSELF CONSTITUTE LEGAL RECOGNITION OF THE RIGHT OF AN OFFICIAL TO A GRADING CORRESPONDING TO A PARTICULAR POST .

*/ 663J0109 /*.

IN JOINED CASES 48/64 AND 1/65

CLAUDE BRUS, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, 26 RUE DE DECEMBRE, WOLUWE-SAINT-LAMBERT, REPRESENTED AND ASSISTED BY MARCEL GREGOIRE, ADVOCATE OF THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, 83 BOULEVARD DE LA GRANDE-DUCHESSE CHARLOTTE,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

APPLICATION FOR :

- THE ANNULMENT OF THE IMPLIED DECISION ( CASE 48/64 ) AND THE EXPRESS DECISION ( CASE 1/65 ) OF THE COMMISSION DISMISSING THE APPLICANT'S CLAIM TO BE INTEGRATED AS FROM 1 JANUARY 1962, IN GRADE A5, TOGETHER WITH ALL LEGAL CONSEQUENCES ARISING THEREFROM,

- THE ANNULMENT SO FAR AS IS NECESSARY OF THE DECISION OF 12 DECEMBER 1962, TO THE EXTENT THAT IT CLASSIFIED HIM IN GRADE B1, STEP 3,

- COMPENSATION BY THE PAYMENT OF ARREARS OF SALARY;

P.355

ADMISSIBILITY

THE DEFENDANT HAS RAISED AN OBJECTION OF INADMISSIBILITY AGAINST APPLICATION 48/64 ON THE GROUND THAT IT WAS OUT OF TIME .

IN FACT, AS A DECISION UPON THE ADMINISTRATIVE APPEAL SUBMITTED ON 4 SEPTEMBER 1963 WAS NOT TAKEN, THE APPLICANT ONLY BROUGHT THE MATTER BEFORE THE COURT ON 29 OCTOBER 1964 .

THE APPEAL WAS THEREFORE NOT FILED WITHIN THE PERIOD PROVIDED FOR IN ARTICLE 91 OF THE STAFF REGULATIONS .

APPLICATION 48/64 IS THEREFORE OUT OF TIME AND CONSEQUENTLY INADMISSIBLE .

ON THE OTHER HAND NO OBSERVATION NEED BE MADE ON THE ADMISSIBILITY OF APPEAL 1/65, FILED WITHIN THE PERIOD OF THREE MONTHS FROM THE NOTIFICATION OF THE CONTESTED DECISION TO THE PERSON CONCERNED .

P.356

ON THE SUBSTANCE OF THE CASE

IN ALLEGING THAT THE CONTESTED DECISION INFRINGES ARTICLE 102(1 ) OF THE STAFF REGULATIONS, THE APPLICANT ATTEMPTS TO BRING BEFORE THE COURT AN ALLEGED INFRINGEMENT OF ANNEX I TO THE STAFF REGULATIONS . THIS GROUND OF COMPLAINT IS MATERIALLY CONNECTED WITH THE SECOND, AND IT IS DESIRABLE TO CONSIDER THEM TOGETHER .

THE APPLICANT HAS BASED HIS APPLICATION ON ANNEX I TO THE STAFF REGULATIONS AND ON THE DECISION OF THE COMMISSION OF 29 JULY 1963, ADOPTING THE TABLE OF DEFINITIONS OF THE DUTIES AND POWERS ATTACHING TO EACH POST AND NOTIFIED TO THE STAFF IN THE EEC COMMISSION STAFF INFORMATION BULLETIN NO 54 OF 2 OCTOBER 1963, AND IN PARTICULAR ON THE DEFINITION IN THE SAID TABLE OF THE DUTIES OF A PRINCIPAL ADMINISTRATOR, WHICH HE CONSIDERS IS THE ONLY ONE APPLICABLE TO THE POST HELD BY HIM . HIS POST CORRESPONDS EITHER TO THAT OF AN OFFICIAL ENGAGED IN PLANNING DUTIES, OR THAT OF HEAD OF ONE PARTICULAR SECTOR OF ACTIVITY IN A DIVISION, OR OF HEAD OF A SPECIALIZED DEPARTMENT .

THE APPLICANT'S ALLEGATIONS ARE WITHOUT SUFFICIENT FOUNDATION . ALTHOUGH THE DOCUMENTS PRODUCED AND THE INFORMATION FURNISHED SHOW THE ZEAL AND COMPETENCE WITH WHICH THE APPLICANT CARRIED OUT HIS DUTIES, THEY ARE NOT SUCH AS TO PROVE THAT THE ABILITY AND KNOWLEDGE REQUIRED BY THE APPLICANT'S POST EXCEED THOSE OF A POST IN GRADE B1 AND CLEARLY FALL WITHIN THE PLANNING DUTIES REFERRED TO BY THE ABOVEMENTIONED DESCRIPTION .

THE APPLICANT CLAIMS ALTERNATIVELY THAT HE OCCUPIES THE POSITION OF A HEAD OF ONE PARTICULAR SECTOR OF ACTIVITY IN A DIVISION .

THE TERMS ' SECTOR OF ACTIVITY ' AND ' ADMINISTRATIVE UNIT ' DO NOT CORRESPOND TO CLEARLY DISTINCT CONCEPTS, AND THEREFORE THEIR APPLICATION TO THE DIFFERENT SUBDIVISIONS OF AN INSTITUTION IS TO A CERTAIN EXTENT DISCRETIONARY AND DEPENDS ON THE GENERAL DISTRIBUTION OF ADMINISTRATIVE RESPONSIBILITIES .

WHILST THE APPLICATION OF THESE CONCEPTS TO A PARTICULAR CASE MAY GIVE RISE TO CRITICISM, THIS FACT ALONE IS NOT OF ITSELF SUFFICIENT TO RENDER THE MEASURE LIABLE TO ANNULMENT FOR INFRINGEMENT OF ARTICLE 5 OF THE STAFF REGULATIONS AND OF MEASURES IN IMPLEMENTATION THEREOF .

ALTHOUGH IT IS TRUE THAT THE ARGUMENTS ADDUCED BY THE APPLICANT MIGHT JUSTIFY CALLING THE SUBDIVISION OF WHICH HE IS IN CHARGE A PARTICULAR SECTOR OF ACTIVITY OF A DIVISION, THEY IN NO WAY EXCLUDE OTHER EVALUATIONS .

P.357

THE FACT THAT THE APPLICANT IS PLACED UNDER THE DIRECT AUTHORITY OF A HEAD OF A DIVISION IS INSUFFICIENT TO MAKE THE ADMINISTRATIVE UNIT OF WHICH HE IS IN CHARGE A SECTOR OF ACTIVITY .

THE APPLICANT CANNOT CLAIM THE STATUS OF HEAD OF A SPECIALIZED DEPARTMENT EITHER, BECAUSE THE DUTIES OF THE SOCIAL SECURITY OFFICE FOR AUXILIARY AND LOCAL STAFF, SET IN OPERATION BY HIM AND PLACED UNDER HIS SUPERVISION, DO NOT INVOLVE A SUFFICIENT DEGREE OF SPECIALIZATION TO JUSTIFY THIS STATUS .

THE APPLICANT HAS CAUSED TO BE PRODUCED A DOCUMENT IN WHICH THE COMMISSION IN STATING ITS REASONS FOR ITS REQUEST TO THE COUNCIL OF MINISTERS FOR BUDGETARY APPROPRIATIONS FOR THE FINANCIAL YEAR 1964, SHOWED ITS INTENTION TO CONSIDER THE APPLICANT'S POST AS FALLING WITHIN CATEGORY A .

HOWEVER, AN INTERNAL ADMINISTRATIVE DOCUMENT OF THIS SORT, DIRECTED AT PERSUADING THE BUDGETARY AUTHORITY TO IMPROVE THE ORGANIZATION OF THE DEPARTMENT, CANNOT AMOUNT TO A LEGALLY VALID ADMISSION THAT THE APPLICANT HAS THE RIGHT TO BE PLACED IN THE GRADE FOR WHICH HE ASKS BUT RATHER APPEARS UNSUITED TO THE PURPOSES FOR WHICH IT IS QUOTED .

FINALLY, THE APPLICANT HAS REQUESTED THE COURT TO ORDER THE DEFENDANT TO PRODUCE CERTAIN DOCUMENTS, IN PARTICULAR THE MINUTES OF THE MEETINGS RELATING TO THE THOROUGH EXAMINATION OF HIS REQUEST WHICH FORMS THE SUBJECT OF THE PRESENT DISPUTE .

THE SECRECY OF DELIBERATION OF THE COMMISSION SHOULD BE BROKEN ONLY IF IT IS NECESSARY TO DO SO IN ORDER TO CLARIFY THE CASE . HOWEVER, NOTHING GIVES RISE TO A PRESUMPTION THAT THE DOCUMENTS REQUESTED ARE RELEVANT TO AN APPRAISAL OF THE GROUNDS OF COMPLAINT WHICH HAVE BEEN RAISED . THERE ARE THEREFORE NO GROUNDS FOR PROCEEDINGS WITH THE MEASURE OF INQUIRY REQUESTED .

IT IS NOT ESTABLISHED THAT THE COMMISSION INFRINGED THE STAFF REGULATIONS AND ITS DECISION OF 29 JULY 1963 BY ITS REFUSAL TO RECLASSIFY THE APPLICANT IN GRADE A5 . CONSEQUENTLY, THE CLAIM FOR PAYMENT OF ARREARS OF SALARY CANNOT BE UPHELD . THE APPLICATION MUST THEREFORE BE DISMISSED .

SINCE THE APPLICANT HAS FAILED IN ALL HIS SUBMISSIONS HE MUST BEAR THE COSTS OF THE PRESENT ACTION, WITH THE EXCEPTION OF THOSE INCURRED BY THE COMMISSION, IN ACCORDANCE WITH ARTICLE 70 OF THE RULES OF PROCEDURE .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 48/64 AS INADMISSIBLE;

2 . DISMISSES APPLICATION 1/65 AS UNFOUNDED;

3 . ORDERS THE APPLICANT TO BEAR THE COSTS, WITH THE EXCEPTION OF THOSE INCURRED BY THE COMMISSION .