JUDGMENT OF 7. 4. 1965 — CASE 28/64 MÜLLER v COUNCIL

In Case 28/64

THE COURT (Second Chamber) composed of: A. M. Donner, President, W. Strauß and R. Monaco (Rapporteur), Judges, Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of the facts

II — Conclusions of the parties

III — Submissions and arguments of the parties

The naming of the defendant as a party

Admissibility

The substance of the case

IV — Procedure

Grounds of judgment

The naming of the defendant as a party

Admissibility

The substance of the case

Costs

I —. Summary of the facts

II —. Conclusions of the parties

1. Annul the decision of the Secretary-General of the Councils of the European Communities which follows by implication from the expiration on 9 June 1964 of the time-limit laid down in the second indent of Article 91 (2) of the Staff Regulations of the European Economic Community and of the European Atomic Energy Community rejecting the request of the applicant concerning his classification, as from 1 January 1962, in one of the grades of career bracket A 4 - A 5 of Category A;

2. Order the Secretary-General of the Councils of the European Communities to pay the costs.

1. Order the defendant to take a decision that the applicant shall be classified in Grade A 3 as from 1 January 1962;

2. Order the defendant to pay the costs.

III —. Submissions and arguments of the parties

(a). He never indicated that he considered that he had suffered damage as a result of his classification in Grade B 2 by the decision of 17 January 1963, anticipating his integration within the Staff Regulations, all the more so as the automatic classification consequent upon the first stage of integration under Article 102 of the Regulations could not legally amount to a measure adversely affecting him. The letters of 19 April and 5 June 1963, to which the defendant appears to allude, do not raise complaints on this subject. In fact:

(b). The request of 19 April 1963 was satisfied by a decision of 21 June 1963. Consequently, neither this decision, nor the previous decision of 28 March 1963 which was partly modified by it, was capable of adversely affecting the applicant, whether in respect of the date on which his promotion to Grade B 1 took effect or as regards the settling of his position under the Staff Regulations. They are not intended to give the applicant a classification in accordance with Article 5 of the Staff Regulations and Annex I thereto, to which the applicant is entitled, but go no further than to grant him, on the basis of Article 45 of the Regulations, a promotion which clearly is not one to which the person concerned has a right.

(c). Nor, furthermore, can the claim be accepted that the applicant failed to bring an appeal or to lodge a complaint as soon as he knew of the definitions of the duties and powers attaching to each basic post. It is of course true that as from that date the applicant knew that his classification did not conform with the Staff Regulations, taking into account the definitions of duties and Annex I to the Regulations. Nevertheless, on the one hand, the definitions of duties is not an act having adverse effect and, on the other hand, the irregular nature of his classification in relation to those definitions and to Annex I to the Regulations followed not from a decision taken by the Secretary-General adversely affecting the applicant, but from the absence of a decision leading to his reclassification. In these circumstances, no act adversely affecting him within the meaning of Article 91 of the Staff Regulations existed in the present case, and the time for bringing an appeal did not begin to run.

(d). In a supplementary memorandum accompanying the reply, the applicant mentions that he had notification on 8 October 1964 of the decision of the Secretary-General of 18 July 1964, providing for his classification in Grade B 1, taking into account the definitions of the duties and powers attaching to each basic post. This decision must therefore be regarded as terminating the integration procedure and is sufficient evidence that the settling of the applicant's position under the Staff Regulations had not yet occurred by 9 April 1964 (the date on which he submitted his complaint in respect of final classification), and did not arise out of the decisions of 1963.

(a). Or the three decisions relating to the applicant in 1963, the last (21 June 1963) is doubdess to be considered as settling the classification of the applicant in Grade 1, as from 1 January 1962. The fact that this decision had the effect of back-dating the coming into effect of the applicant's promotion to Grade B 1 does not avoid the position that by confirming him in this grade and not in Grade A 5 or A 4, it necessarily adversely affected him with regard to his classification.

(b). The modification in the reply of the conclusions set out in the application is inadmissible under Article 38 (1) of the Rules of Procedure. It cannot be examined in the light of Article 42 (2) of those Rules, because that Article does not apply to cases such as the present one.

IV —. Procedure

1. The defendants maintain that this application is out of time, on the ground that the complaint put forward by the applicant arises from the earlier decisions of 28 March 1963 and 21 June 1963, promoting him to Grade B 1 as from 1 January 1962.

2. In addition, the applicant modifies in the reply the conclusions set out in the application in which he requests principally to be classified in Grade A 3.

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 the Protocol on the Statute of the Court of Justice of the European Economic Community and 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; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70; THE COURT (Second Chamber) hereby:

I Dismisses Application 28/64 as unfounded;

2 Orders the applicant to pay the costs of the proceedings, with the exception of those incurred by the defendant.