Opinion of Mr Advocate-General Gand

Mr President,

Members of the Court,

Mr Claude Brus, previously an official with the Société nationale des chemins de fer français, was engaged at the end of 1958 by the Commission of the EEC in Grade B8, Step 4, and assigned to the Salaries and Mission Expenses Division of the Directorate of Personnel. He was subsequently reclassified in Grade B7, Step 3, with effect from 1 December 1959, and in Grade B6, Step 2, with effect from 1 March 1960. At the entry into force of the Staff Regulations, he was established by decision of 20 November 1962 in Grade B1, Step 3, as from 1 January 1962, retaining his previous position as Head of the Salaries Section of the Salaries and Mission Expenses Division.

Following the decision of the Commission defining the duties and powers attaching to each post, on 4 September 1963 he requested his reclassification as from 1 January 1962 in Grade A5, the career bracket of a Principal Administrator. On 18 September 1963 he received the reply that his claim was being given serious consideration. On 21 May 1964 he raised the matter again, enquiring whether the failure to reply with which he had been met should be considered simply as a rejection of his request. Although a letter of 15 July 1964 raised his hopes of an early decision in his case, on 28 October he brought before you Application 48/64 for the annulment of the implied decision of the Commission in so far as it refused to integrate him as from 1 January 1962 in Grade A5, for the annulment so far as is necessary of the earlier decision establishing him in Grade B1 and for an order that the Commission should pay him arrears of salary and interest thereon.

Then, after the Commission had expressly rejected his complaint of 30 November 1964, on 7 January 1965 Mr Brus brought before you Application 1/65, a new appeal against that decision, which repeated his previous conclusions.

A — Admissibility

The administrative complaint was submitted on 4 September 1963; appeal 48/64 — against the implied decision arising from the Commission's attitude — was only filed on 29 October 1964. The defendant consequently maintains that it is out of time despite two letters of acknowledgement addressed to the person concerned.

This appears correct if reference is made to Article 91 (2) of the Staff Regulations which reads thus: If no decision has been taken by the competent authority of the institution in response to a request or complaint by one of the persons to whom these Staff Regulations apply, this shall be deemed on the expiry of a period of two months from the date when the request or complaint was submitted to constitute an implied decision of rejection; appeals against such decisions shall be filed within a period of two months from that date. In other words, the implied decision has been taken and the period for bringing an appeal against it starts to run when, two months after the complaint, the implied decision has not resulted in an express decision by the Commission. In this case, two letters of acknowledgement, one written less than two months and the other written more than two months after the complaint, informed the person concerned that his request was receiving consideration. But no decision was involved and they therefore do not influence the period for filing appeals. They can neither cause the period of three months provided for in the first paragraph of Article 91 (2) for contesting an express decision to start to run, nor preclude the emergence of an implied decision if no decision is taken.

On the other hand, the (Commission does not dispute the admissibility of Application 1/65 at least in so far as it is against the decision of 30 November 1964 expressly rejecting Mr Brus's complaint. It was lodged within three months following that decision and the complaint had itself been submitted within the period for filing an appeal, after the definition of the duties and powers attaching to each post, which, according to your judgments, constitutes a substantial new factor allowing a fresh consideration of the classification of integrated servants. On the other hand, as the representative of the Commission stressed in the oral procedure, I do not think it desirable in this case to extend the concept found in certain national legal systems which, viewing the express decision merely as the confirmation of the earlier implied decision, considers that its occurrence does not cause the period for lodging the appeal to start to run afresh. Although it is then no longer admissible for Mr Brus to dispute the decision of 12 November 1962 which established him in Grade B1, we must consider whether his appeal is well founded in so far as it is directed against the refusal of his request for reclassification.

B — The substance of the case

The applicant was classified in Grade Bl, corresponding to the post of a Principal Administrative Assistant, that is to say, at the top of Category B which, according to Article 5 (1) of the Staff Regulations, comprises executive duties. He maintains that, having regard to the duties carried out by him before the Staff Regulations came into force he must be classified in Category A, and more exactly, in career bracket A4-A5, which is that of Principal Administrator.

You know that, according to Article 5, career brackets in this category are for staff engaged in administrative and advisory-duties which require university education or equivalent professional experience. You also know that pursuant to the definitions of duties adopted by the Commission on 29 July 1963, a Qualified Official engaged in planning, advisory or supervisory duties in one sector of activity, or the Head of one particular sector of activity in a Division or the Head of a specialized Department is to be classified as a Principal Administrator.

Mr Brus maintains that as the Head of the Salaries Section of the Salaries and Mission Expenses Division he could claim to fall within one or other of these definitions.

I am therefore of the opinion that:

1 Translated from the French.