Opinion of Mr advocate-general Roemer
Mr President
Members of the Court,
In the case with which we are dealing today, the application of the special measures in Chapter 2 of Regulation No 259/68 of the Council is under discussion again, that is, the application of the provisions which were to enable the single Commission to reduce the number of its posts and rationalize its departments after the merger of the executives. It is necessary to know the following of the facts of the case :
The applicant who brought these proceedings entered the sevice of the Commission of the European Atomic Energy Community on 6 October 1960. At that time his salary was equal to a classification in Grade A 3 of the salary table in the Staff Regulations. He was later established in this grade as Head of Division. As regards his employment in the service, I need only mention for the moment that from April 1964 to June 1968 he was Inspector of Administration and Finance in the Directorate General for Personnel and Administration. On the occasion of the restructuring of the administration of the single Commission, the applicant was informed in Spring 1968 that it might be necessary to propose assigning him to a post corresponding to the career bracket immediately below that applicable to his grade, in acordance with Article 8 of Regulation No 259/68. As the applicant did not object to this request, the Commission took a decision on 21 May 1968 to assign him to the post of Principal Administrator, Grade A 4, with the title of Adviser in the Directorate of Administration as from 4 June 1968. The applicant learned of this in a letter from the President of the Commission of 22 May 1968 which he received on 27 May 1968. At first he was placed under a Head of Division, but later, that is on 1 August 1968, he was informed by the Directorate General for Personnel and Administration that he had to work directly for the Director of Administration.
The applicant very soon attempted to alter this unsatisfactory situation. He tried to do so in particular by applying for a large number of posts in Grades A 3 and A 2 which were notified vacant from March 1968 onwards. If I am correct, he applied for two posts in Grade A 2 and sixteen in Grade A 3. The last application was made in September 1969. However the applicant met with no success. In addition, he sent a note on 22 July 1968 to the President of the Joint Committee entrusted with the task of examining the assignment of posts in the context of the restructuring of the Commission's administration. He referred to his applications and the need to assign him to a post corresponding to his grade. However the applicant was told in a reply of 13 August 1968 that the Joint Committee was not responsible for officials in Grades A 1, A 2 and A 3. After this he sent an express complaint to the President of the Commission on 14 August 1968, in which he referred chiefly to the vacancy notices issued since March 1968 and to the applications which he had made. Moreover he urged that he be assigned as quickly as possible to a post corresponding at least to his grade. He only received a reply to this in a letter of 6 November 1968 from the President of the Commission, that is, after the expiry of the two months' period under Article 90 of the Staff Regulations of Officials.
As the applicant had not improved his position by this method, (the President's letter was really only a confirmation of earlier decisions taken by the Commission with which he was not in agreement), he lodged an application to the Court on 12 December 1968. The applicant asks the Court to deal with the following requests:
Legal consideration
I — Questions of admissibility
As the Commission has taken the attitude first and foremost that all the applicant's conclusions must be dismissed as inadmissible and as it devoted a great deal of space to its explanation in its arguments, these objections must be tackled first.
1 — Requests for annulment
With regard to the requests for the annulment of certain of its decisions, the Commission first raises objections as to the observance of the period for lodging an application and secondly as to the scope of the matter at issue.
2 — Applicant's request for a declaration
The Commission has moreover raised objections as to the admissibility af the requests set out in the application for an order that the applicant be assigned to a post in his grade. Its main objection is that the Court of Justice must be prevented from giving the Commission orders of this kind. I have already repeatedly emphasized that this objection is incorrect in the categorical form in which the Commission expresses it. In company with the applicant, I would refer to the findings in Cases 18/63 ([1964] E.C.R. 163 et seq.) and 70/63 ([1964] E.C.R. 861 et seq.). However, it is not necessary to go into the problem more deeply because the criticized request was considerably narrowed in the reply. Basically the Court is now asked only to declare that the applicant was wrongly deprived of a post in his grade. In this respect the applicant has expressly left it to the discretion of the Court to decide whether this declaration should appear only in the grounds of judgment or also in the operative part of the judgment. Thus we are confronted only with an argument which is intended to substantiate the request for annulment and in respect of which there are no objections as to admissibility. Furthermore, as regards the need mentioned in the reply to refer the case back to the Commission for compliance with the judgment, this is merely the legal consequence of a possible judgment granting annulment and it does not seem objectionable to raise this point either.
Thus the second request in the application as amended certainly does not give rise to objections as regards admissibility.
3 — Claim for damages
Finally, the Commission also claims that the applicant's claim for damages is inadmissible by referring once more to Article 38 (1) of the Rules of Procedure, that is, by arguing that the applicant has not specified the extent to which he has suffered damage and how he deduces that the Commission is accordingly liable.
It must be acknowledged that the Commission's criticism on this point does not appear to be entirely unfounded, as the application does not contain any particular statements concerning the claim for damages which is formulated last of all. I would certainly hesitate to say however that Article 38 (1) of the Rules of Procedure has been completely disregarded. For all that, the arguments from which the applicant claims to derive his claim can be seen from the recital of the facts, the statement of the circumstances in which the contested decisions are said to have been taken and the nature of the complaints which have been made generally against the Commission. Although it must thus be acknowledged that the grounds upon which the applicant's claim is founded in this case depart greatly from the norm, I do not suggest that the application for damages be dismissed without going into the problem more deeply.
4 — Summary
The relatively detailed preliminary investigation as to the admissibility of the application leads me to find that the only serious objections are to the requests for annulment. In fact they must be deemed inadmissible since they are requests for the annulment of decisions to fill posts in Grade A 2 which were made in March 1968 and published in April 1968 at the latest. Moreover, they are inadmissible since they request the annulment of decisions to fill posts in Grade A 3 in which the applicant did not display special interest by making an express application for them. Having made this important qualification we can now proceed to examine the substance of the case.
II — Substance of the case
1 — Requests for annulment
2 — Claims for damages
Finally, the last question is whether the applicant also has a claim to the award of damages for material and non-material damage which he maintains he suffered through being employed permanently in a post in Grade A 4. As regards the material damage, I can be relatively biref on this point. According to the rule in Article 8 of Regulation No 259/68 officials who, like the applicant, are employed in a post in a lower grade retain the right to the salary corresponding to their true grade. Therefore, as the applicant receives the salary corresponding to Grade A 3, just as before, although he does not hold a post in Grade A 3, it is really impossible to see in what respect he feels that the has suffered material damage.
Even the failure to notify the vacant posts in Grade A 2 which the applicant claims prevented him from applying for them cannot justify a claim like this which was, moreover, for only one Belgian franc. This is so because the failure to notify vacant the posts of which the applicant complains was, as I have shown, not illegal.
As regards the claim for damages for non-material damages the applicant justifies this by referring to the worries he had concerning the decisions which he criticized and by referring to the uncertainty of his present situation and to the loss of prestige which he states were the result of his being employed in a post in Grade A 4. On the last point, the applicant claims in addition that the staff was belatedly informed that he was no longer under a Head of Division who was younger than him but was working directly for the Director of Administration as from 1 August 1968. The Commission rightly points out in answer to this argument that the determining factor is; first and foremost that the applicant's relegation in step cannot be deemed illegal. It states that, moreover, according to the system under Regulation No 259/68 it is an established fact that measures of this kind cannot be regarded as censure or a sign of inefficiency. It claims that there is no question of the legal situation being uncertain since the applicant retained his official status and the salary corresponding to his grade. In fact these references provide very important arguments for rejecting the applicant's claim. Accordingly there remains at most the fact that the applicant was at first under a Head of Division who was younger than him and that staff was not notified immediately of the step taken to correct this decision. Properly understood, this can only be seen as a certain breach of etiquette which could easily creep in during the extensive and detailed operation of restructuring the administration. In my opinion it is not in any case an argument which can justify a claim for the award of damages.
Therefore the applicant's claims for the award of damages must be dismissed as a whole as unfounded.
III — Summary
Finally, I can summarize the result of my investigations as follows :
The requests for annulment set out in the application are only admissible to the extent that they seek the annulment of the decision of 21 May 1968 regarding the applicant's employment and the annulment of later decisions whereby posts in Grade A 3 were filled for which the applicant applied. As for the rest, the requests for annulment must be dismissed as inadmissible partly because the period for lodging an application was not observed and partly because the applicant has not shown sufficient interest to claim legal protection.
In my opinion only the request for the annulment of the decision taken in July 1968 regarding the filling of the post of Head of Division in the Directorate General for Personnel and Administration is well founded.
All the other requests, including the request for the award of damages, must be dismissed as unfounded.
Since the applicant has in my opinion been partly successful in proving his case this seems to indicate that the Commission should bear half the applicant's costs.
1 Translated from the German.