Opinion of Mr Advocate-General Gand

Mr President,

Members of the Court,

Application 43/64 which has been referred to you by the Second Chamber is the last episode in the argument which has been going on between the Secretary-General of the Councils of the European Communities and Mr Richard Müller ever since the Staff Regulations came into force. In order to understand it in its context, it will be helpful briefly to point out again the main landmarks in this official's career and the claims which he has made both through official channels and to the Court concerning it.

Mr Richard Müller was employed under contract on 31 August 1959 in Grade B VIII, Step 3, and was assigned to the accountancy department. He was then promoted to Grade B VIII, Step 3, on 1 April 1961. The next event was a decision of 1 November 1961 putting him in charge of checking the expenditure of the Secretariat of the Councils, both as regards liabilities entered into and orders to pay. This was before the financial rules for the Secretariat took effect, which did not occur until 1 January 1963. On 17 January 1963 Mr Müller was established under the new Staff Regulations in Grade B2, Step 3, which corresponded to a simple transposition from his former position. Almost immediately he was promoted to Grade B1, Step 1, by a decision of 28 March 1963 which refers to Articles 45 and 108 of the Staff Regulations. His promotion took effect from 1 October 1962 and his seniority in Step 1 was deemed to run from 1 April 1962. He then submitted a complaint which resulted in a decision of 21 June 1963 back-dating his promotion to 1 January 1962, with seniority in Step 1 calculated from the same date.

It was only on 15 October 1963 that the definitions of the duties and powers attaching to each basic post were brought to the attention of the staff. On 20 December 1963, that is to say, after the entry into force of the financial rules of the Secretariat, Mr Müller was confirmed in his post as financial comptroller. He formed the view that this post corresponded to Category A, and on 9 April 1964 he made a request through official channels to be graded in A5-A4 as from 1 January 1962. On 30 June 1964 he made Application 28/64 to this Court to that end.

But on 2 July 1964 the Secretary-General of the Councils expressly rejected the applicant's complaint and stated that the post which he had already held before the Staff Regulations came into force fell within career bracket B1. So on 15 July Mr Müller asked to be classified in Grade B1, Step 3, as from 1 January 1962, with seniority in that step as from 1 April 1961. Since he did not receive any reply, he made Application 43/64 to this Court on 22 September 1964.

You are aware that, since the case which we are now considering was pleaded before you, your Second Chamber was dismissed Application 28/64. It decided that the appointing authority had not misconstrued Article 45 of the Staff Regulations or Annex I thereto when classifying the applicant in Grade B1. So the legal position now is that you are no longer required to give judgment on Mr Müller's grade but on his step.

I. Let me say first of all that the application is directed against the Secretary-General of the Councils, that is to say, the appointing authority, and follows a complaint submitted to that same authority. This is an error as the defendant emphasizes and as your judgment in Case 28/64 stated. Acts affecting the legal situation of officials must be deemed to be those of the institution by which they are employed; each Community has a separate legal personality, since the Treaties have not made the Councils into a common institution, and the existence of a single Secretariat does not mean that the Councils are a single legal entity. Since the applicant is an official of the Councils of the EEC and the EAEC, his application must be considered as being directed against those two Councils by which he is employed.

II. Even when the application is thus amended, the question whether it is admissible is harder to answer.

1. First of all the defendants argue against the conclusions of the application by saying that they contradict those contained in Application 28/64. In that application Mr Müller asked to be classified in a grade of career bracket A4-A5, whereas in this application he assumes that his duties are those of a post in career bracket B1. He refuses to consider Application 43/64 as alternative to Application 28/64 and maintains that the two cases are independent. Moreover, a step can only be granted in a particular grade and it is not possible to pass over the question of the grade in which the applicant should be classified.

2. The Councils also argue that the application was made out of time. Certainly it was started less than two months after a decision of rejection implied by the silence with which the administrative complaint of 15 July 1964 was met. But this implied decision only confirmed a legal situation which existed much earlier, and in reality the application is directed against the decisions of 28 March and 21 June 1963 which classified the applicant in Grade B1, Step 1, with effect from 1 January 1962 and which have become definitive. Even if the applicant was unable to grasp the fact that these decisions adversely affected him until the definitions of the duties and powers attaching to each basic post were adopted by the Councils and communicated to the staff on 15 October 1963, he should at least have been able to bestir himself within the time-limit of three months starting on that last date.

III. In the light of the above observations I now turn to an examination of the substance of the case. Mr Richard Müller had been classified at Step 3 of Grade B7 since 1 April 1961. This corresponds to Grade B2 in the Staff Regulations. He has in fact been in Grade B1, Step 1, since 1 January 1962. This last grade is the one which, taking into account the definitions of duties and powers, corresponds to the post of financial comptroller which he holds. This is what emerges from the judgment in Case 28/64. Mr Müller asserts that, by application of the Staff Regulations, he is entitled to Step 3 in this grade, which is the step which he had previously.

1. His arguments are to a large extent based on the judgment in Case 70/63 and there is no point in going over what that judgment says. He believes that it lays down a general legal rule which he describes as follows (here I quote the wording of the reply itself): When an official, after being integrated in accordance with Article 102 of the Staff Regulations, is entitled to have his administrative position regularized with regard to Annex I to the Staff Regulations in combination wth the definitions of the duties and powers attaching to each basic post (cf. judgment in Joined Cases 20 and 21/63), there shall be granted to him the same step with the same seniority within that step in the new grade which corresponds to his revalued post as the step and seniority which he had in the former grade during the first stage of his integration carried out under Articles 102 and 103 of the Staff Regulations.

2. The applicant also bases his claim on Article 103 of the Staff Regulations. Since the Secretary-General of the Councils admitted that the post held by him before the entry into force of the Staff Regulations fell within career bracket B1 according to the definition of duties and powers, he was entitled to be classed in this grade as from 1 January 1962. However, by virtue of Article 103, he should also, so he alleges, have been put in Step 3 of this grade which was the same as the step that he had held in Grade B2 in which he had first been integrated. He also claims the same seniority in this step (as from 1 April 1961) for the same reasons. Replying to one of the defendants' objections, he reminds the Court that, according to the judgment in the Maudet case, the integration procedure can be divided into two stages, the first of which does no more than apply Article 102 whilst the second results in the reclassification of the servant in accordance with Annex I. He states that it is during this second stage that Article 103 comes into operation, and the provisions contained therein concerning the preservation of seniority in a step are to be applied not only to the measures taken on establishment, but also for reclassification by virtue of the definitions of duties and powers.

3. The applicant's argument in this case, as I have explained them to you in this opinion, do not seem to me to be wholly persuasive, but I must add that the argument put forward by the defendant institution is not without its weaknesses. Although, says the institution, the grading in B1 of the post of financial comptroller, held by Mr Müller since 1 November 1961, in accordance with the Staff Regulations could have constituted a revaluation of the post, this does not exclude the possibility that the revalued post could be filled by means of promotion. In fact the appointing authority must be in a position to consider whether the former holder of the post can continue to perform the same duties or whether those duties must be given to other more qualified persons. In the first of these two cases, the former holder must be put in the higher grade but his grading is the result of promotion within the meaning of Article 45 of the Staff Regulations. Therefore the seniority in the new grade and step must be calculated along the lines laid down in Article 46, which is what was done here. As the case-law of your Court stands at present, this reasoning cannot be accepted, although I personally do not see anything very wrong with it.

However it is enough for me to avoid any application of the judgment in the Collotti case — as I think we must here — and also the interpretation which the applicant gives to Article 103 of the Staff Regulations, in arriving at my opinion:

1 Translated from the French.