OPINION OF MR ROEMER — CASE 102/63 BOURSIN v HIGH AUTHORITY

Mr President,

Members of the Court,

This is an application by an official of the High Authority, claiming that his career prospects have been harmed by the new Staff Regulations of the ECSC which came into force on 1 January 1962 and, as a subsidiary point, that he should be classified under the list of posts in the Staff Regulations in accordance with the duties actually exercised by him.

As regards the facts of the case I need only make the following remarks: The applicant entered the service of the High Authority on 3 January 1955. He was established as an official under the ECSC Staff Regulations with effect from 1 July 1956 and classified in Grade A 6/1. In October 1958 he was described in the detailed list of posts for the Marketing Division as Adminstrator III in Grade A 6/2. By decision of the High Authority of 27 July 1960 the applicant was promoted to Grade A 5/1 with effect from 1 January 1960. From 1 July 1960 he performed temporarily the duties of a Principal Administrator (post No 18 in the detailed list of posts for the Directorate-General of Work Problems, Rationalization and Reconversion), a decision to that effect having been taken by the President of the High Authority on 4 January 1961. In accordance with the Staff Regulations, he drew a supplementary allowance as from 1 September 1960 to make up the difference in salary between his actual grade and Grade A 4/1. When the new ECSC Staff Regulations, which coincided largely with the Staff Regulations of the EEC and Euratom, came into force, the applicant was placed by decision of the President of the High Authority on 5 September 1962 in Grade A 4/1 with effect from 1 January 1962. His position within the administration was described in a note addressed to the applicant by the Director of Personnel on 23 January 1963 as that of Principal Administrator in career bracket A5 — A4. The applicant objected to this in a letter to the President of the High Authority on 28 January 1963, expressing his dissatisfaction with this career bracket. After the definition of posts established by the High Authority on 18 December 1962 had been communicated to the staff in a note of 21 May 1963, the applicant decided to lodge a formal complaint under Article 90 of the Staff Regulations by letter dated 29 July 1963 to the President of the High Authority, in which he requested an alteration in his position within the administration, in particular that the career prospects open to Principal Administrators under the earlier Staff Regulations (A4 — A3) be preserved. Since the High Authority's reply, by letter of 17 October 1963, was negative, an application was lodged at the Court of Justice on 27 November 1963, seeking the following:

The High Authority's view of these claims is essentially that they are inadmissible on several grounds and that in any event they must be dismissed as unfounded.

I shall examine each of the detailed arguments of fact and of law adduced by the parties to support their claims at the appropriate point in the examination which now follows.

Legal Consideration

In considering the questions of law raised here I think it sensible to follow the order in which the conclusions are presented, examining all the problems as to whether the application is admissible and well-founded as they occur in relation to each separate claim. Consequently, I do not intend to deal in advance with questions of admissibility raised in the course of the proceedings as to do so would, I think, obscure the general picture.

1. The first head of the conclusions

The applicant first seeks the annulment of the refusal of the High Authority to adjust his position within the administration in accordance with his complaint of July 1963, that is, to extend his career bracket to include Grade A3.

2. The second head of the conclusions

The second head of the conclusions seeks the annulment so far as is necessary of Article 5(4) and Annex I to the Staff Regulations. This will not detain us long. It is certainly inadmissible for being out of time, as I have shown in the relevant argument on the first head. It is possible to demonstrate its inadmissibility by means of the ingenious objection advanced by the High Authority, namely that the grounds adduced in its support fail to achieve their purpose, as the applicant has in reality no interest in having the Staff Regulations annulled, since not only would he thereby jeopardize his present legal position, which depends on the Regulations which he criticized, but also he would have no guarantee that his career prospects would be improved were the Staff Regulations to be re-issued by a competent authority. Finally, all the arguments thus far presented make it clear that it is also unfounded.

3. The third head of the conclusions

The third head of the conclusions asks for the annulment of the refusal of the Committee of Presidents to maintain the career prospects of the applicant — and of other officials — under the old Staff Regulations, in accordance with the requests made by the High Authority.

First, it leads us to a few observations about the question of the identity of the defendant in the proceedings. This does not depend on the theory, repeatedly maintained by the applicant's representative, that an application directed against the Community as such makes any institutions involved parties to the proceedings, for to that extent the well-established rule of procedure applicable in the law relating to the Coal and Steel Community as well as in EEC law, must must be observed, namely that only those Community institutions whose acts are contested or — in applications for damages — which have been expressly named as parties, are defendants. The special feature of the present case is different: the application was brought, as far as necessary, expressly against the Committee of Presidents, which raises the question whether in fact the Committee of Presidents can at all be a defendant in legal proceedings.

I would concur with its Chairman and say that it cannot, on the ground that the Coal and Steel Community can only be represented by its institutions, whereas the Committee of Presidents is not one of those institutions within the meaning of Articles 5 and 6 of the Treaty.

In this respect, too, I may refer to the the statements of my colleague Mr Advocate-General Lagrange in the Algera case. There he maintains that The decisions which it (the Committee of Presidents) has to take, must be incorporated into the decisions — whether in the form of regulations or of individual decisions — of the various institutions on which they are binding, and only through the latter can the legality of the decisions of the Committee of Presidents be contested.

Accordingly, the third head of the conclusions can only be regarded as admissible if it is considered as an objection of illegality aimed at procuring the incidental examination of the decisions of the Committee of Presidents which formed the basis of the measures directly challenged.

Within the general picture of the proceedings and the outline of their purpose this is quite possible, and all the more so when — as we have heard in the proceedings — the negotiations between the High Authority and the Committee of Presidents as to settlement of the disputed questions took place before the Staff Regulations were established. The decisions of the Committee of Presidents referred to in this head of the conclusions are thus nothing other than the rules of law of the revised Staff Regulations themselves. Individual decisions concerning the situation of the applicant and of others similarly placed have not been made by the Committee of Presidents.

This shows that the third head of the conclusions must share the fate of the second, so that, as regards the question of the legality of the provisions in the Staff Regulations concerning the definition of the various career brackets, we may simply refer to what has already been said.

4. The request for a declaration in the fourth head of the conclusions, as to the admissibility of which I refer to what was said in the judgment in the Case of Wollast, nee Schmitz, (Case 18/63), requires no particular remarks: If the applicant is not entitled as of right to retain the career prospects of a Principal Administrator under the former Regulations, then the Court cannot give a ruling to the effect that he is.

5. Alternatively, that is to say, in the event of those of his claims so far dealt with not being successful, the applicant seeks the annulment of the refusal allegedly contained in the note from the High Authority of 17 October 1963, to classify him in Grade A 3, on the ground that this was the grade accorded him by implication prior to his integration under the new Regulations by virtue of his having been entrusted with certain duties. This raises the same problems as in the case of Muller v Commission of the European Economic Community: we must see whether the applicant has a claim to be established in the list of grades in accordance with the duties he actually performed.

6. The second alternative head of the conclusions, seeking the annulment of the decision of 5 September 1962 to integrate the applicant in so far as it classifies him in Grade A4 is inadmissible because it is out of time. It would also be unfounded, since no infringement of the relevant provisions (Article 94; Annex I to the Staff Regulations) has been established.

7. I have also said all that is necessary concerning the request for a declaration that the applicant should be classified in Grade A3, a claim which is in substance a corollary to head no 5 of the conclusions.

8. Finally, as regards the claim for damages the same applies as in the Muller case: It is inadmissible, because the application does not comply with the requirements of the Statute of the Court of Justice and its Rules of Procedure since it fails to set out the alleged wrongful act or omission. It would also be unfounded, since after all that has been said concerning the claims for annulment and for declarations, it has not been proved that the High Authority acted illegally.

9. To summarize, we are left with the following conclusions:

1 Translated from the German.