JUDGMENT OF 15. 12. 1966 — CASE 34/65 MOSTHAF v COMMISSION

In Case 34/65

THE COURT (First Chamber) composed of: A. Trabucchi (Rapporteur), President of Chamber, L. Delvaux and R. Lecourt, 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

III — Submissions and arguments of the parties

A — Admissibility

B — Substance

IV — Procedure

Grounds of judgment

Admissibility

Costs

I —. Facts

II —. Conclusions of the parties

1. Annul the decision of the Commission of 8 March 1965;

2. Order the Commission to classify the applicant in Grade A 3 as from 1 April 1965;

3. Order the Commission to pay the costs.

1. Declare that the application is inadmissible ;

2. In the alternative, dismiss it as unfounded;

3. Order the applicant to pay the costs of the action.

1. Make a preliminary ruling on the plea of inadmissibility in accordance with Article 91 of the Rules of Procedure;

2. Dismiss the application as inadmissible;

3. Order the applicant to bear the costs of the action.

1. Dismiss the request for a preliminary ruling submitted by the Commission;

2. In the alternative, reserve, its decision for the final judgment.

III —. Submissions and arguments of the parties

A —. Admissibility

B —. Substance

(a). While holding Grade A 4 the applicant's predecessor, Mr Bauer, received from Mr Margulies, the Commissioner concerned, the undertaking that should he remain in the service of the Commission he would immediately be promoted to Grade A 3 in a post involving the same duties. Moreover, on 14 March 1963, the Director-General for Industry and Economy requested that after Mr Bauer's departure his post be filled by an official in career bracket A 3 having regard to the tasks and duties involved therein. Although it relates to a post in career bracket A 5 — A 4, the Vacancy Notice unquestionably refers to the post already in existence and formerfy held by Mr Bauer, which was being retained and which involves the same duties as before.

(b). The administrative unit for which the applicant is responsible has numerous powers and at present its work mainly concerns civil liability in nuclear matters, the insurance of joint undertakings against nuclear risks and the transport of radioactive materials. The applicant, who is directly subordinate to the Director for Economy, enjoys a large measure of independence in the direction of this work. In addition, he conducts negotiations with third parties, often represents his division in collaboration with other Directorates-General and with the Legal Department of the Commission of the EEC. This wide autonomy is explained by the fact that the applicant's duties are largely legal in nature, while the other work of the Directorate mainly concerns problems of economic policy and industrial and commercial management. Two other officials in Category A, in Grades A 5 and A 7 assist the applicant, as does a permanent adviser.

(c). Finally, referring to the case-law laid down in the cases of Maudet and Reynier/Erba, the applicant maintains that if the duties attaching to his post are taken into account, this post must be placed in the same career bracket as those of the officials whose career brackets were defined by these judgments of the Court.

(a). It is irrelevant to claim that the title of Head of Division had been used in relation to Mr Bauer, as it had not been used by the appointing authority. Secondly, as all the facts referred to occurred before 1 January 1962 they cannot be taken into consideration in relation to the classification of a post under the provisions of the Staff Regulations at present in force.

(b). As regards the definition of the duties attaching to the applicant's post, the defendant maintains that it never determined the powers of the applicant in the way in which he describes them. It contests generally the justification of all the arguments put forward by the applicant on this point and claims that they are without relevance to the extent that they refer to the nature and importance of the duties allotted to him. Furthermore, it is normal for an administrator in charge of a specialized department to enjoy a certain measure of independence and to have a certain number of assistants.

(c). As regards the arguments based on the case-law of the Court, the defendant objects that in this instance the decisions of the Court in the cases of Maudet and Reynier/ Erba are irrelevant, being plainly distinguishable from the present case in that the parties in question had never disagreed over the fact that the applicants in those cases were Heads of Division. Moreover, these cases concern the a posteriori classification of posts in the light of the situations existing before the entry into force of the Staff Regulations, while in this instance the classification of the applicant's post in career bracket A 5 -A 4 occurred after the entry into force of these Regulations.

IV —. Procedure

(1). Walter Funck, Director-General, Head of the Directorate-General for Administration and Personnel of the Commission of Euratom;

(2). Eduard von Geldern, Director-General, Head of the Directorate-General for Industry and Economy of the Commission of Euratom:

(3). Theodor Vogelaar, Director-General, Head of the Euratom Division of the joint Legal Department of the Executives of the European Communities.

(1). Walter Funck was heard on the first question:

(2). Eduard Von Geldern was heard on the second question:

(3). Eduard Von Geldern was heard on the third question:

(4). Eduard Von Geldern was heard on the fourth question:

On those grounds, Upon reading the pleadings and the results of the measures of inquiry; 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 Atomic Energy Community; Having regard to Article 152 of the Treaty establishing the European Atomic Energy Community; Having regard to the Staff Regulations of Officials of the European Atomic Energy Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:

1 Dismisses Application 34/65 as inadmissible;

2 Orders the defendant to bear its own costs and one half of those incurred by the applicant;

3 Orders the defendant to pay the travelling expenses incurred by the witnesses.