61965J0034

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1 . MEASURES ADOPTED BY AN INSTITUTION - DEFINITIVE NATURE - CRITERIA

2 . PROCEDURE - JUDGMENT GRANTING ANNULMENT - LEGAL EFFECTS - LIMITED TO THE PARTIES AND TO THE PERSONS DIRECTLY CONCERNED BY THE MEASURE ANNULLED - JUDGMENT CONSTITUTING A NEW FACTOR - CONCEPT

3 . MEASURES ADOPTED BY AN INSTITUTION - ANNULMENT DEPENDENT ON A NEW FACTOR - CRITERIA - PRINCIPLE OF LEGAL CERTAINTY TO BE TAKEN INTO CONSIDERATION

1 . A MEASURE CONTAINING A SPECIFIC DECISION MADE WITHOUT ANY RESERVATIONS MUST BE REGARDED AS FINAL IN THE ABSENCE OF MATERIAL FACTORS CLEARLY AND CONSISTENTLY INDICATING THE CONTRARY .

2 . CF . PARA . 4, SUMMARY, CASE 43/64, ( 1965 ) ECR 385 .

APART FROM THE ACTUAL PARTIES IN PROCEEDINGS BEFORE THE COURT, THE ONLY PERSONS CONCERNED BY THE LEGAL EFFECTS OF A JUDGMENT OF THE COURT ANNULLING A MEASURE ARE, THE PERSONS DIRECTLY AFFECTED BY THE MEASURE WHICH IS ANNULLED . SUCH A JUDGMENT CAN ONLY CONSTITUTE A NEW FACTOR AS REGARDS THOSE PERSONS .

*/ 664J0043 /*.

3 . PROTECTION OF THE CERTAINTY OF LEGAL POSITIONS AND RELATIONSHIPS IMPLIES THAT THE EXISTENCE OF DECISIONS OF COMMUNITY AUTHORITIES GOVERNING SUCH POSITIONS AND RELATIONSHIPS CANNOT FOR EVER BE CALLED IN QUESTION .

IN CASE 34/65

HANS DIETER MOSTHAF, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ARVED DERINGER, ADVOCATE OF THE OBERLANDESGERICHT, COLOGNE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, ADVOCATE OF THE COUR D' APPEL, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF THE SECRETARIAT OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

APPLICATION TO ANNUL THE DECISION ADOPTED BY THE COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY ON 3 MARCH 1965, DISMISSING THE COMPLAINT MADE BY THE APPLICANT ON 22 JANUARY 1965;

P.529

ADMISSIBILITY

IN ITS ORAL SUBMISSIONS THE DEFENDANT MAINTAINED THAT, AS THE APPLICANT HELD GRADE A5, HE COULD NOT HAVE BEEN TRANSFERRED TO HIS PRESENT POST IF IT HAD BEEN ONE IN GRADE A3 .

THE QUESTION WHETHER THE APPLICANT HAS AN INTEREST IN AN APPLICATION WHICH, IF SUCCESSFUL, WOULD RESULT IN HIS LOSING HIS PRESENT POST MUST THEREFORE BE CONSIDERED .

IF, AS THE APPLICANT MAINTAINS, THIS POST WERE TO BE CLASSIFIED IN GRADE A3, HIS APPOINTMENT TO THIS POST WOULD LOSE ALL LEGAL BASIS, AS A TRANSFER CAN ONLY BE MADE WITHIN THE SAME GRADE .

HOWEVER, IF THIS WERE SO, THE APPLICANT MIGHT POSSIBLY BE ENTITLED TO BRING A CLAIM FOR COMPENSATION FOR ANY DAMAGE SUFFERED ON THE GROUNDS THAT THE APPOINTING AUTHORITY HAD REQUIRED HIM TO PERFORM DUTIES OF A HIGHER LEVEL THAN THOSE OF GRADE A5 WHICH HE HELD UNDER THE STAFF REGULATIONS .

THUS, INDEPENDENTLY OF THE EXISTENCE OF A RIGHT TO BE CLASSIFIED IN A HIGHER GRADE, THE APPLICANT HAS A LEGALLY VALID INTEREST IN BRINGING THIS APPLICATION .

THE DEFENDANT MAINTAINS THAT ITS DECISION OF 3 MARCH 1965 WHICH IS CONTESTED IN THE PRESENT APPLICATION, MERELY CONFIRMS ITS DECISION OF 13 FEBRUARY 1964 CONCERNING THE APPLICANT'S ASSIGNMENT TO HIS PRESENT POST AND THAT IT IS THEREFORE THE VALIDITY OF THE LATTER DECISION WHICH THE APPLICANT IS CONTESTING . FOR THIS REASON THE APPLICATION IS INADMISSIBLE AS IT IS OUT OF TIME .

ON THE OTHER HAND, THE APPLICANT MAINTAINS THAT THE DECISION OF ASSIGNMENT OF 13 FEBRUARY 1964 AND THE DECISION OF THE COMMISSION OF 3 MAY 1963, ON WHICH THE VACANCY NOTICE FOR THE POST IN QUESTION WAS BASED, CONTAIN NO PRECISE INFORMATION ON THE CLASSIFICATION OF THIS POST .

IN SUPPORT OF HIS ARGUMENT THE APPLICANT REFERS IN PARTICULAR TO THE PROPOSAL OF 4 APRIL 1963 BY THE DIRECTOR-GENERAL FOR ADMINISTRATION AND PERSONNEL TO CLASSIFY THIS POST PROVISIONALLY IN A5-A4 AND STATES THAT THIS PROPOSAL HAS BY IMPLICATION BEEN ACCEPTED BY THE COMMISSION .

P.530

THIS INTERPRETATION IS CONFIRMED BOTH BY THE GENERAL POLICY FOLLOWED BY THE COMMISSION REGARDING THE RECLASSIFICATION OF CERTAIN POSTS IN GRADE A3 AND BY UNDERTAKINGS TO THIS EFFECT GIVEN TO THE APPLICANT'S PREDECESSOR, MR BAUER .

THE COMMUNICATION FROM THE DIRECTOR-GENERAL FOR ADMINISTRATION AND PERSONNEL TO THE COMMISSION CANNOT ALONE CONSTITUTE EVIDENCE THAT THE COMMISSION HAS ACCEPTED HIS RECOMMENDATIONS AS THE COMMISSION IS IN NO WAY BOUND BY PROPOSALS MADE BY ITS DEPARTMENTS AND THE SILENCE OF THE MINUTES ON THIS POINT CANNOT BE INTERPRETED AS ACQUIESCENCE .

HOWEVER, WHEN CONSIDERED IN THE LIGHT OF THE FACT THAT A MEMBER OF THE COMMISSION WAS ABLE TO GIVE UNDERTAKINGS OF CLASSIFICATION IN GRADE A3 TO THE APPLICANT'S PREDECESSOR AND THAT THE COMMISSION HAS SUBSEQUENTLY RECLASSIFIED CERTAIN POSTS IN THIS GRADE, THIS PROPOSAL MAY GIVE RISE TO DOUBTS AS TO THE REAL SCOPE OF THE DECISION ON WHICH THE PRESENT CLASSIFICATION OF THE APPLICANT'S POST IS BASED .

A MEASURE CONTAINING A SPECIFIC DECISION MADE WITHOUT ANY RESERVATIONS MUST BE REGARDED AS FINAL IN THE ABSENCE OF MATERIAL FACTORS CLEARLY AND CONSISTENTLY INDICATING THE CONTRARY .

THE RESULTS OF THE MEASURES OF INQUIRY CONDUCTED BY THE COURT DO NOT SUPPORT THE ARGUMENT THAT THE MEASURES ADOPTED BY THE COMMISSION ON 3 MAY 1963 CONCERNING THE CLASSIFICATION OF THE APPLICANT'S PRESENT POST WERE PROVISIONAL .

IN PARTICULAR, IT HAS NOT BEEN SHOWN THAT WHEN THE POST IN QUESTION WAS CLASSIFIED THE COMMISSION WAS UNCERTAIN AS TO THE ASSESSMENT OF THE DUTIES CORRESPONDING THERETO .

IN THESE CIRCUMSTANCES ANY POSSIBLE SUBSEQUENT DECISION ASSESSING THE POST DIFFERENTLY WOULD BE, NOT A MEASURE COMPLETING THE EARLIER DECISION, BUT A NEW AND INDEPENDENT DECISION CHANGING THE LEGAL SITUATION CREATED BY THE EARLIER ONE .

THIS IS CONFIRMED BY THE FACT THAT THE DECISIONS TAKEN BY THE COMMISSION AFTER 1963 CONCERNING THE REASSESSMENT IN GRADE A3 OF POSTS ALREADY CLASSIFIED IN A5-A4 ARE NOT FOR THE MOST PART RETROACTIVE .

FOR THIS REASON, THE DECISIONS ON WHICH THE FORMER CLASSIFICATION WAS BASED MUST BE RECOGNIZED AS FINAL .

THIS ALSO APPLIES IN THIS INSTANCE .

THE APPLICANT ALSO MAINTAINS THAT THE AMENDMENT IN RELATION TO SEVERAL OFFICIALS OF VARIOUS LEGAL ARGUMENTS FORMERLY PUT FORWARD BY THE EXECUTIVES FOLLOWING CERTAIN JUDGMENTS GIVEN BY THE COURT ON QUESTIONS OF CLASSIFICATION CONSTITUTES A NEW FACTOR IN THE LIGHT OF WHICH THE COMMISSION IS REQUIRED TO REVIEW ITS EARLIER DECISIONS .

P.531

IN FACT, WHEN THE COMMISSION ACTS ON THE BASIS OF JUDGMENT OF THE COURT, IT IS LESS THE MEASURE ADOPTED BY THE ADMINISTRATION THAN THE JUDGMENT ITSELF WHICH MIGHT BE PRESENTED AS A NEW FACTOR .

HOWEVER, WITHOUT PREJUDICE TO THE GENERAL CONSEQUENCES DRAWN BY THE ADMINISTRATION FORM A JUDGMENT IN A PARTICULAR CASE, JUDGMENTS OF THE COURT GIVEN IN ADVERSARY CASES AND INVOLVING THE ANNULMENT OF A MEASURE PRODUCE LEGAL EFFECTS WHICH CONCERN ONLY THE PARTIES TO THE CASE AND THE PERSONS DIRECTLY AFFECTED BY THE MEASURE WHICH IS ANNULLED .

THE APPLICANT DOES NOT CLAIM TO HAVE BEEN DIRECTLY AFFECTED BY THE MEASURES ANNULLED BY THESE JUDGMENTS .

SUCH JUDGMENTS CANNOT, THEREFORE, CONSTITUTE A NEW FACTOR AS REGARDS THE APPLICANT .

THE APPLICANT'S REQUEST ESSENTIALLY CHALLENGES THE VALIDITY OF THE DECISION OF 3 MAY 1963, BY WHICH THE COMMISSION CLASSIFIED THE POST IN QUESTION IN CAREER BRACKET A5-A4, AND THE DECISION OF 13 FEBRUARY 1964 WHICH DRAWS THE CONSEQUENCES OF THIS CLASSIFICATION BY AWARDING GRADE A5 TO THE APPLICANT .

MOREOVER, PROTECTION OF THE CERTAINTY OF LEGAL POSITIONS AND RELATIONSHIPS IMPLIES THAT THE EXISTENCE OF DECISIONS OF COMMUNITY AUTHORITIES GOVERNING SUCH POSITIONS AND RELATIONSHIPS CANNOT FOR EVER BE CALLED IN QUESTION, UNLESS THERE ARE NEW AND SERIOUS REASONS FOR DOING SO .

WHEN THE APPLICATION WAS LODGED, THE PERIOD FOR MAKING AN APPLICATION TO ANNUL THE ABOVEMENTIONED DECISIONS HAD ALREADY EXPIRED .

IT MUST THEREFORE BE CONCLUDED THAT THE PRESENT APPLICATION WAS SUBMITTED OUTSIDE THIS PERIOD AND MUST FOR THIS REASON BE DECLARED INADMISSIBLE .

THE APPLICANT HAS FAILED IN HIS APPLICATION .

UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

MOREOVER, UNDER THE TERMS OF THE FIRST SUBPARAGRAPH OF ARTICLE 69(3 ), WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .

THE CIRCUMSTANCES WHICH PRECEDED THE APPOINTMENT OF THE APPLICANT TO HIS PRESENT POST MAY HAVE LED HIM TO MISTAKE THE COMMISSION'S REAL INTENTIONS REGARDING THE CLASSIFICATION OF HIS POST AND, THEREFORE, REGARDING THE FINAL NATURE OF THE DECISION MADE IN THIS RESPECT ON 3 MAY 1963 .

FOR THIS REASON, IT IS APPROPRIATE TO ORDER THE DEFENDANT TO PAY HALF THE COSTS INCURRED BY THE APPLICANT .

AS THE WITNESSES WERE HEARD IN THEIR CAPACITY AS OFFICIALS OF THE COMMISSION OF THE EAEC, THEIR TRAVEL EXPENSES MUST BE BORNE BY THE DEFENDANT .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 34/65 AS INADMISSIBLE;

2 . ORDERS THE DEFENDANT TO BEAR ITS OWN COSTS AND ONE HALF OF THOSE INCURRED BY THE APPLICANT;

3 . ORDERS THE DEFENDANT TO PAY THE TRAVELLING EXPENSES INCURRED BY THE WITNESSES .