JUDGMENT OF 17.12.1964 — CASE 102/63 BOURSIN v HIGH AUTHORITY
In Case 102/63
THE COURT (First Chamber) composed of: R. Lecourt, President, L. Delvaux and A. Trabucchi (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts
II — Conclusions of the parties
I — declare null and void:
III — As a subsidiary claim,
III — Submissions and arguments of the parties
The ECSC and the Committee of Presidents named as parties
Admissibility of the applicant's claims
I — 1. Annulment of the refusal to keep open the applicant's career prospects
I — 2. Illegality of the Staff Regulations, especially Article 5 (4) and Annex I
II — Preservation of the applicant's career prospects up to Grade A3
III — 1. Annulment of the refusal, contained in the note of 17 October 1963, to reclassify the applicant in Grade A3
III — 2. Annulment of the integration of the applicant in so far as it involves his establishment in Grade A4
IV — Establishment of the applicant in Grade A3 with effect from 1 January 1962
V — Non-material damage to the applicant
Substance of the case
A — The refusal of the High Authority contained in its note of 17 October 1963
The argument based on lack of competence ratione temporis
(a) Admissibility
(b) Substance
The complaint of a violation of the principle of vested rights
B — The decision of the Committee of Presidents mentioned in head I — 3 of the conclusions
C — The correspondence between duties and grade
IV — Procedure
Grounds of judgment
A — The naming of the ECSC and the Committee of Presidents as defendants
B — Preservation of the applicant's career prospects
C — Admissibility of the second head of the principal conclusions and the second head of the subsidiary conclusions
D — Correspondence between duties and grade
1. Admissibility
2. The substance
E — The claim for damages
Costs
I —. Facts
II —. Conclusions of the parties
I —. declare null and void:
1. the refusal of the High Authority contained in its note of 17 October 1963 to grant the applicant's request that his administrative career be regularized, and especially that his career prospects, altered by the definition of duties and powers attaching to basic posts contained in Annex I to the Staff Regulations, should remain unaltered, at least for him personally;
2. as tar as is necessary, the start Regulations themselves, especially Article 5 (4) and Annex I to the Regulations;
3. the decision of the Committee of Presidents refusing the request of the High Authority for the career prospects of the applicant to be allowed to remain as they were under the former Staff Regulations at least for him personally:
II —. Declare that the defendant parties named in 1 and 2 must allow the applicant's career prospects to remain as they were under the former Staff Regulations at least for him personally;
III —. As a subsidiary claim,
1. the refusal of the High Authority contained in the note of 17 October 1963 to grant the applicant's request that his administrative career bracket be regularized, with the aim of obtaining a classification in Grade A3, which he had by implication attained prior to becoming subject to the Regulations;
2. the integration of the applicant under the Staff Regulations in so far as it places him in Grade A4;
IV —. Declare that the applicant must be regarded as established in Grade A3 with effect from 1 January 1962 at the step in that grade to which he is entitled, and with all the consequences in law as regards salary and all other advantages accruing from the Staff Regulations;
V —. order the defendant parties referred to at 1 and 2 to pay the applicant non-material damages of, provisionally, one franc, reserving the right to amend this figure as he deems necessary in the course of the proceedings;
VI —. order the defendant parties mentioned at 1 and 2 to bear the entire costs of the proceedings.
1. The minutes of the High Authority relating to the adoption of the Staff Regulations of officials dating from 1955 (apparently, 21 December 1955) and 1956;
2. A note from the President of 16 June 1958, signed by Messrs Dehnen, Rollman and Vinck (all three Directors in the Marketing Division), concerning the promotions for 1 July 1958;
3. A note from Mr F. Vincik of December 1959, concerning Mr J. Boursin on the subject of: Assessment of the work and duties of Mr J. Boursin with a view to possible promotion (Schedule to Annual Report);
4. Internal memorandum No 200 (High Authority No 6874/61 f, dated 2 January 1962, signed G. Signorini) on the subject of: Publication of Articles 10, 11, 13 and 15 of the Regulations;
5. The minutes relating to the adoption of the new Staff Regulations by the High Authority in its meeting on 14 February 1962;
6. A note addressed to the Director-General of Work Problems of 15 March 1962 from Mr Signorini on the subject of: Introduction of new career bracket. Main subjects concerned — Conditions of employment and Social security;
7. A note of 29 May 1962 from Mr Vinck to Mr G. Signorini, on the subject of: Establishment report on Mr Jacques Boursin;
8. Preliminary report from I.S.I.D.A. (HA document No 7276/62 f) of October 1962 on the subject of: Organization of the Directorate-General for Work Problems, Rationalization and Reconversion of the ECSC (if necessary, extracting pp. 34 to 38 regarding the Industrial Reconversion Department);
9. A note of 19 December 1962 from Mr Signorini to Mr F. Vinck regarding the new career brackets;
10. A staff communication (HA document No 8585/62 f Schedules I, II, III) of 20 December 1962, signed by Mr G. Signorini on the subject of: Introduction of the new career brackets;
11. A note of 7 January 1963 from Mr G. Signorini to Mr F. Vinck on the subject of: Introduction of the new career brackets;
12. A note addressed to Mr G. Signorini, dated 5 August 1963, from Mr F. Vinck on the subject of: Complaint by Mr Boursin under Article 90 of the Regulations — Administrative position of Mr Boursin and Mr Will;
13. A note of 21 October 1963 from Mr G. Signorini to Mr Vinck on the subject of: Complaint by Mr Boursin under Article 90 of the Regulations;
14. A note to the High Authority from Mr Krawielicki regarding the applicant's appeal;
1. Mr Spiegleer,
2. Mr F. Vinck,
III —. Submissions and arguments of the parties
1. The ECSC;
2. The High Authority of the ECSC;
3. If necessary, the Committee of the four Presidents mentioned in Article 78 of the ECSC Treaty.
I — 1. Annulment of the refusal to keep open the applicant's career prospects
(a). The defendant maintains that this request is inadmissible on the ground that neither the note from the President dated 17 October 1963, nor any previous communication whatsoever from the High Authority could have contained a refusal to uphold the applicant's vested rights relating to a career within bracket A3, because he never had any. The applicant was in fact established in the post of Principal Administrator which he occupied from 1 January 1962, that is to say, a date when the career of Principal Administrator no longer included Grades A4/A3, but only Grades A5/A4. Thus, since the applicant was never established in career bracket A4/A3, no career prospects nor a fortiori any right attaching to career bracket A3 could have vested in him or, as a result, have been withdrawn.
(b). The defendant also maintains that this claim is inadmissible because it is out of time. In fact, the applicant was informed of the provisions which could have affected any prospects he might have had of a career falling within bracket A 3, namely Article 5 (4) and Annex I to the Regulations regarding the correspondence between basic posts and career brackets and the determination of the position within the administration and personal career bracket of the applicant by note from the President of the High Authority of 16 February 1962 and by a communication of 23 January 1963, respectively. Consequently, the applicant had been out of time since May 1962 for the purpose of contesting Article 5 (4) of the Regulations and since the end of April 1963 for contesting the determination of his position within the administration and his career bracket.
I — 2. Illegality of the Staff Regulations, especially Article 5 (4) and Annex I
II —. Preservation of the applicant's career prospects up to Grade A3
III — 1. Annulment of the refusal, contained in the note of 17 October 1963, to reclassify the applicant in Grade A3
III — 2. Annulment of the integration of the applicant in so far as it involves his establishment in Grade A4
IV —. Establishment of the applicant in Grade A3 with effect from 1 January 1962
V —. Non-material damage to the applicant
A —. The refusal of the High Authority contained in its note of 17 October 1963
I —. The definition of duties and powers attaching to the basic posts listed in Annex I to the Regulations, communicated to the applicant on 21 May 1963, is void because it is based on Regulations drawn up by a body lacking the necessary powers, the period of time prescribed by paragraph 7 of the Convention on the Transitional Provisions having expired when the Regulations were drawn up by the Committee of Presidents. Articles 46 and 62 of the previous Regulations, drawn up pursuant to paragraph 7 of the Convention, are not applicable outside the transitional period allowed for by this provision.
II —. The curtailment of the applicant's career prospects is a violation of the principle whereby vested rights must be observed, a principle which must be safeguarded by the Court according to Article 31 of the ECSC Treaty.
(a). Admissibility
(b). Substance
B —. The decision of the Committee of Presidents mentioned in head I — 3 of the conclusions
(a). The Committee of Presidents has no power, under Article 78 of the ECSC Treaty, to oppose such a measure on which the High Authority alone is competent to decide;
(b). The refusal violates the principle that vested rights must be respected.
C —. The correspondence between duties and grade
IV —. Procedure
A —. The naming of the ECSC and the Committee of Presidents as defendants
B —. Preservation of the applicant's career prospects
C —. Admissibility of the second head of the principal conclusions and the second head of the subsidiary conclusions
D —. Correspondence between duties and grade
1. Admissibility
2. The substance
E —. The claim for damages
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Article 78 of the Treaty establishing the ECSC and paragraph 7 of the Convention on the Transitional Provisions annexed to that Treaty; Having regard to the Staff Regulations of officials of the ECSC; Having regard to the Rules of Procedure of the Court; Having regard to the Protocol on the Statute of the Court of Justice of the ECSC; THE COURT (First Chamber). hereby:
1 dismisses application No 102/63;
2 orders each party to bear its own costs.