JUDGMENT OF 14. 7. 1965 — CASE 46/64 SCHOFFER v COMMISSION
In Case 46/64
THE COURT (Second Chamber) composed of: A. M. Dormer, President of Chamber, W. Strauß (Rapporteur) and R. Monaco. 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
2. The substance of the case
A — Submissions and arguments of the applicant
B — Submissions and arguments of the defendant
IV — Procedure
Grounds of judgment
I — Admissibility
II— Costs
I —. Facts
II —. Conclusions of the parties
III —. Submissions and arguments of the parties
1. Admissibility
(a). The judgment of 19 March 1964 in the Maudet case (Rec. 1964, p. 219 et seq.) cannot foe considered as a new fact capable of reviving the right of action. This was the case in which the Court recognized that every servant integrated in the grade which he held before the Staff Regulations came into force has the right to have his position regularized, where this is called for, in accordance with the principle that duties and grades should correspond.
(b). The decision of 9 June 1964 whereby the defendant appointed Mr Stefani, assistant to the Director-General of Economic and Financial Affairs, to Grade A3 is not a new fact either. This appointment was made for reasons stricdy personal to the official appointed, and also it does not introduce a new conception of the duties of an assistant. It constitutes an application of the principle, adopted by the Commission when it met on 27 and 28 November 1962, namely of taking decisions on the grading of assistants case by case for the future. Moreover the said appointment was not the first application of this principle.
As to (a). The text of Article 102 of the Staff Regulations of officials could give rise to doubts. Therefore, until judgment was given in the Maudet case no official could be expected to take the risk of bringing proceedings. At the time of the request of 19 June 1964, the decision of the defendant on the grading of a series of heads of departments in application of the principle in the Maudet judgment had not yet been taken.
As to (b). The appointment of Mr Stefani was the first act by which the defendant acknowledged that the duties of an assistant to a Director-General come within Grade A3, and was also the first act whereby it applied the rules adopted at the meeting of 27 and 28 November 1962.
2. The substance of the case
A —. Submissions and arguments of the applicant
(a). The applicant describes in very great detail the duties of an assistant to a Director-General. He emphasizes the fact that on occasions the assistant deputizes for the Director-General, namely:
(b). According to the table or definitions, such duties correspond to career bracket A3 and not to career bracket A4/5.
(c). There are rune assistants to Directors-General, of whom four are classified in Grade A3 and five in Grade A4 without there being any valid reason justifying such a difference. This arbitrary practice shows that the present application is well-founded even apart from the fact that the grade should correspond to the post. The definition of basic posts required by Article 5 of the Staff Regulations would lose all meaning if the same duties could be classfied differendy. It is even a fact that not long ago the ratio of assistants in A3 and assistants in A4/5 was 5 to 4.
B —. Submissions and arguments of the defendant
As to (a). The defendant agrees in general with the way in which the applicant describes his duties, but it does not agree that the assistant may be called upon to represent his Director-General. When the latter is absent the understudy is the official with the longest service in the highest grade in accordance with Article 26 of the defendant's internal regulations.
as to (b). By reason of its special nature, the post of assistant cannot be … integrated in a rigid and uniform manner into the framework of the hierarchy of posts. The silence observed by the table of definitions on this subject shows that .the defendant has even more discretionary power in grading the persons concerned than in other cases.
as to (C). The different grading or tne assistants is in accordance with the decision of the defendant of 27 and 28 November 1962in future to take decisions on the grading of assistants from case to case on the basis of the special features peculiar to this post. The difference is justified because the duties attached to the post of an assistant are variable in nature and in extent in the different Directorates-General, the structure and tasks of which are also variable.
IV —. Procedure
I —. Admissibility
(a). The present application is brought under Article 91 (2) of the Staff Regulations of officials of the EEC and of the EAEC against the implied decision, to be inferred from the absence of an express decision, rejecting the request made by the applicant on 19 June 1964 to be classified in Grade A3 as from 1 January 1962. An analysis of the said implied decision shows that it confirmed the decision taken on 21 December 1962 whereby the applicant was integrated under the Staff Regulations, and appointed an official in Grade A4. It is not disputed that the applicant lodged neither an administrative complaint nor an appeal to the Court against this latter decision within the time-limit laid down in the said Article 91. This is equally true if it be considered that this time-limit starts to run from the publication of the table of definitions of duties and powers attaching to each post, as prescribed by Article 5 (4) of the Staff Regulations of officials, and published by the defendant in 1963.
(b). As regards the judgment in Cases 20 and 21/63, apart from the actual parties in proceedings before the Court, the only persons concerned by the legal effects of a judgment of the Court annulling a measure are the persons directly affected by the measure which is annulled. Such a judgment can only constitute a new factor as regards those persons.
(c). As regards the appointment of Mr Stefani, the applicant obviously thinks that this constitutes a decisive change in the defendant's administrative practice. It is sufficient for the purposes of this case to note that this allegation is contrary to statements made by the applicant himself. It is therefore unnecessary to examine the premise according to which such a decisive change constitutes a new fact enabling the period for lodging an appeal to start to run afresh. First of all it is in fact clear from the allegations made by the two parties that in making the said appointment the defendant did no more than apply the criteria which it had adopted in a decision of principle adopted in November 1962 and according to which it would thenceforth decide from case to case on the grading of assistants. Furthermore the applicant has himself claimed that during recent years and amongst the assistants to Directors-General the number of officials classified in Grade A3 has decreased from 5 out of 9 to 4 out of 9.
(d). Finally the applicant argues in a general way that the obligation on the part of institutions to grade their officials in a manner which is in accordance with the Staff Regulations, and to avoid discrimination, is not limited in time. In itself this assertion is correct but it is not relevant because it fails to distinguish between the admissibility of the application and its substance.
II—. Costs
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 Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70; Having regard to the Staff Regulations of officials of the European Economic Community and of the European Atomic Energy Community, especially Article 91, THE COURT (Second Chamber) hereby:
1 Dismisses the application as inadmissible;
2 Orders the applicant to bear the costs of the proceedings, except those incurred by the defendant.