JUDGMENT OF 8. 7. 1965 — CASE 83/63 KRAWCZYNSKI v COMMISSION
In Case 83/63
THE COURT (First Chamber) composed of: L. Delvaux, Acting President of Chamber, A. Trabucchi and W. Strauß (Rapporteur), Judges, Advocate-General: J. Gand Registrar: A.Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts
II — Conclusions of the parties
III — Submissions and arguments of the parties
1. Admissibility of the application
2. The substance of the application
A — The classification of the applicant
B — The defendant's refusal to assist the applicant against the alleged animosity shown by Mr Gueron
C — On the alleged disorganization of of the Centre
IV— Procedure
Grounds off judgment
I — Admissibility
II— The substance of the application
1. The first submission
A — Preliminary considerations
B — Application of the criterion of rank
(1) Position of the applicant at 1 January 1962
(2) Position of the applicant at 23 July 1963
C — Application of the scientific and personal criterion
2. The second submission
3. The third submission
4. Offers of proof
III — Costs
I —. Facts
(1). In 1955 the applicant obtained a degree in physical science at the University of Munich with the mention very good. In 1957 he obtained a doctorate in natural sciences with the mention summa cum laude.
(2). On 1 April 1961, ne entered tne service of the Joint Nuclear Research Centre at Ispra (hereinafter referred to as the Centre), an organization controlled by the defendant, where he was first of all given responsibility for problems concerning reprocessing.
(3). On 17 May 1962, the Director of the Centre and the Head of the Directorate-General for Research and Education sent a memorandum to the heads of department of the Centre on the reorganization of the Chemistry Department, by which from 1 June 1962 the applicant became responsible for the direction of the section concerned with decontamination and processing of effluents.
(4). On 15 October 1962 the applicant studied his establishment report. This report defined the duties of the applicant with the words responsible for directing the reprocessing department. It rated the efficiency, ability and conduct of the applicant generally as Good, sometimes as Very good or Satisfactory; it confirmed that the applicant was capable of carrying out the duties at present entrusted to him and contained an assessment by Mr Ritter, Director of the Centre, which on the whole was very flattering.
(5). On 16 October 1962 the applicant submitted a complaint to the Commission :
(6). By a decision of the defendant of 25 April 1963 the applicant was established in Grade A5.
(7). On 28 April, following an incident which occurred at Brussels during an official meeting held on 25 April 1963, the applicant submitted a complaint to the defendant in which he describes the events which took place as follows:
(8). On 17 May 1963, the applicant made a reasoned request pursuant to Article 90 of the Staff Regulations to the defendant for classification in career bracket A3 or, alternatively, in career bracket A4.
(9). On 7 August 1963 the applicant made the present application.
II —. Conclusions of the parties
I —. Declare that it has jurisdiction to hear this dispute;
II —. Declare that this application is admissible;
III —. On the substance: state that the present application is well founded;
IV —. Take note that the applicant reserves the right to claim in the course of the proceedings that the defendant be ordered to pay damages by virtue of the damage suffered as a result of the above;
V —. Order the defendant to pay all the costs of the action.
I —. Dismiss the two objections of inadmissibility raised by the defendant as unfounded;
II —. On the substance, principally: A — 1. Accept the conclusions of the applicant set out in his originating application; consequently, rule that the applicant's claim for classification in Grade A3 or, alternatively, in Grade A4 as from 1 January 1962, with seniority in the grade as from 1 April 1961, is justified both on the basis of his position as Director of the Reprocessing Department from 1 April 1961 to the beginning of 1962 and as Head of the section for decontamination and processing of effluents; 2. Rule that the fact that the applicant was maintained in Grade A5/1 represents discrimination as compared with his non-German colleagues, is ultra vires and constitutes a misuse of powers; 3. Order the defendant to pay such damages as the Court shall see fit for the damage suffered by the applicant as a result of the reduction in grade and discrimination which he has suffered; B— 1. Rule that the defendant has failed in its obligation of assistance and protection provided for in Article 24 of the Staff Regulations; rule that the defendant's attitude is incorrect and it is therefore liable to pay the applicant such damages as the Court shall see fit; 2. Rule that the lack of organization at the JNRC adversely affects the applicant's right to and interest in a career in particular by depriving him both of any opportunity to carry out scientifically useful work and of his eligibility for promotion under Article 45 of the Staff Regulations; rule that the defendant is bound to make good the resulting material and non-material damage suffered by the applicant and, therefore, order it to pay such damages as the Court shall see fit; In the alternative: take note that applicant supplements the offer of proof made in his application by the following points : (1) that on taking up his duties he was informed by [the Director of the Centre] that, however important their duties at the JNRC, the salary paid to German officials could not exceed by more than 20 % the salary formerly paid in Germany; that this discrimination was, however, only of a temporary nature and that an adjustment would be made at the end of the probationary period (6 months); (2) that [the Director of the Centre] informed the applicant that as long as [Mr Gueron] was Director-General for Research, he had no chance of improving his classification and salary since [Mr Gueron] was basically hostile towards him; (3) that all the applicant's German colleagues even those who entered the service of 2. the JNRC after his appointment, had advanced to A higher grades and that the applicant had alone been up passed over for promotion: i (4) that on 17 December 1963 the applicant received oral notification that the number of his colleagues was to be appreciably reduced; rule that this offer of proof is relevant and decisive and therefore accept it and declare that the following witnesses shall be heard: …
III —. Order the defendant to pay all the costs of the action.
III —. Submissions and arguments of the parties
1. Admissibility of the application
2. The substance of the application
A —. The classification of the applicant
(a). On admissibility: The applicant s request is inadmissible. It is doubtful whether an official has the power to refer the question of his classification to the Court, unless he can show that his request is based on various specific and weighty elements of fact which together are evidence of an infringement of his rights and interests. In this case the submissions of the applicant are clearly irrelevant; the defendant sets out this argument in detail.
(b). On the substance: waving given details of the development of the Centre, in particular in the area of hot chemistry (the chemistry of radioactive materials) and reprocessing, the defendant puts forward the following arguments :
B —. The defendant's refusal to assist the applicant against the alleged animosity shown by Mr Gueron
C —. On the alleged disorganization of of the Centre
IV—. Procedure
I —. Admissibility
1. The defendant maintains that, as the subject of this application is the same as that of the applicant's complaint of 16 October 1962 through official channels and as the rejection of that complaint was not contested within the prescribed period, the application is inadmissible.
2. The Court finds of its own motion that the reply sets out the conclusions of the application in an amended form without giving the factors which might have justified such an amendment.
II—. The substance of the application
1. The first submission
A —. Preliminary considerations
1. The present application arises out of the express rejection on 23 July 1963 of the complaint submitted by the applicant through official channels on 17 May 1963 requesting a revision of the grade in which he had just been established
2. The defendant established the applicant in Grade A 5, which corresponds to the grade which he had been accorded before the Staff Regulations were applied to him.
3. The classification of officials of the scientific and technical services of the Joint Nuclear Research Centre is governed by Annex I B of the Staff Regulations and the table of the definitions of basic posts concerning these officials drawn up by the defendant under Article 5 of these Regulations (hereinafter referred to as the table of definitions).
B —. Application of the criterion of rank
(1). Position of the applicant at 1 January 1962
(2). Position of the applicant at 23 July 1963
C —. Application of the scientific and personal criterion
1. In the initial constitution of teams of research workers, the defendant rightly attached the greatest importance to criteria based on university education, experience in employment and age, which enabled the most objective classification to be made.
2. The applicant claims to have suffered discrimination inasmuch as, by an agreement made with the Federal Republic of Germany, the defendant is alleged to have undertaken not to pay to German research workers, during the probationary period, a salary which exceeded by more than 20 % that previously paid in Germany. The defendant categorically denies this statement.
3. It follows from all these factors that, from the point of view of the scientific and personal criterion considered at 23 July 1963, the defendant was entitled to continue to classify the applicant in Grade A5.
2. The second submission
3. The third submission
4. Offers of proof
III —. Costs
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the witnesses; Upon hearing the opinion of the Advocate-General; Having regard to the Protocol on the Statute of the Court of Justice of the European Atomic Energy Community; Having regard to the Staff Regulations of Officials of the European Economic Community and of the European Atomic Energy Community, in particular Articles 24 and 91 and Annex I B; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, in particular Articles 38, 42, 69 and 70; THE COURT (First Chamber) hereby:
1 Dismisses the conclusions of the applicant directed to securing an amendment of his classification as unfounded;
2 Dismisses the conclusions of the applicant directed to obtaining a finding that the defendant failed in its duty of assistance and protection as unfounded;
3 Dismisses the conclusions of the applicant concerning the alleged lack of organization at the Centre at Ispra as inadmissible;
4 (a) Orders the defendant to bear its own costs and two fifths of the costs of the applicant in the main action incurred in respect of the request for the communication of additional information and amplification of evidence, filed by the applicant on 17 December 1964; (b) Orders the defendant to bear the costs incurred in connexion with the travelling expenses of the witnesses.
(a) Orders the defendant to bear its own costs and two fifths of the costs of the applicant in the main action incurred in respect of the request for the communication of additional information and amplification of evidence, filed by the applicant on 17 December 1964;
(b) Orders the defendant to bear the costs incurred in connexion with the travelling expenses of the witnesses.