OPINION OF MR ROEMER — CASE 24/69 NEBE v COMMISSION

Mr President,

Members of the Court,

In the proceedings with which I shall deal today we are concerned with the promotion of an official of the Commission of the European Economic Community. This promotion is not however being contested, as in other cases, by candidates who were passed over but by the person actually promoted, who feels aggrieved at not being promoted with retroactive effect. He further complains that in respect of the period prior to the coming into effect of the decision to promote him, the Commission did not make a decision under Article 7 (2) of the Staff Regulations, in that it did not call on him temporarily to occupy the post to which he was promoted. As regards the details of the case the following facts are relevant.

On 1 September 1962 the applicant entered the service of the Commission of the European Economic Community. At first his status was that of a member of the auxiliary staff. Having completed a probationary period commencing on 1 November 1962 he was by decision of 11 December 1963 and with effect from 1 May 1963 established as an official in Grade A 6/1 of career bracket A 7/A 6. As a dairy expert he was from the outset employed in the Directorate General for Agriculture, Directorate of Market Organization for Animal Products, Milk Products Division. It would appear that he was in particular concerned with the preparatory work and the application of the common organization of the market for milk and milk products and he continues to work in this field. In matters of detail however there seems to be a dispute between the parties as to the actual duties performed by the applicant and as to the date of their commencement. For the present purposes I need only say that there was an announcement on 4 March 1965 of a vacancy for an A 5 post in career bracket A 5/A 4 within the administrative unit to which the applicant belongs, and that this post involved in essence responsibility for the implementation of Regulation No 13/64 on the gradual establishment of a common organization of the market for milk and milk products. This announcement became possible after the Council of Ministers on 14 November 1964, by way of a supplementary budget for the year 1964, granted the Commission a number of A 5 posts and after the Commission had allocated these to its departments. On 9 March 1965 the applicant submitted his candidature for the post advertised. After proceedings that took up considerable time, the Commission decided on 6 April 1966 by way of written procedure to promote the applicant to the position of principal administrator in Grade A 5/1 as from 1 May 1966 and to assign him to the advertised post. An appropriate certificate of appointment was prepared on 23 May 1966 and the applicant was duly notified through official channels; he acknowledged receipt of the certificate of appointment by way of a statement of 1 July 1966. However, even at that time he was convinced that the Commission had not fixed the date when the promotion was to take effect in the correct manner. For that reason he endorsed the acknowledgement of receipt signed by him with an appropriate reservation. Going further, he submitted a formal complaint to the Commission on 3 August 1966. In that document he argues that the duties of the new post had already been his since the beginning of 1964. For that reason he requested that his appointment to Grade A 5 take effect as from 1 November 1964, bearing in mind the fact that he had on that date completed the minimum period required by Article 45 of the Staff Regulations in Grade A 6. He further applied for a decision under Article 7 (2) of the Staff Regulations taking effect from 1 May 1964, the date on which the post was made available in the budget, this decision to remain effective until the coming into force of the appointment to Grade A 5. The receipt of the complaint was notified to the applicant by a letter of 24 August 1966. This informed him that his case, which gave rise to fundamental and complex issues was receiving careful consideration; once a final conclusion had been reached he could expect to receive an answer. Since this answer took a long time in coming, the applicant by letter of 20 October 1968 reminded the President of the Single Commission which had in the meantime been constituted of the existence of his complaint. That complaint was finally dealt with by a decision of the appointing authority, notified to the applicant by letter of 14 March 1969. As regards fixing the date of the promotion, the appointing authority rejected the complaint, on the basis of the provisions of a decision of the Commission of 26 May 1965 on the coming into force of appointments and promotions. As regards his application for a decision under Article 7 of the Staff Regulations, the applicant was informed that this could not be granted since the Commission had never had any proposal put to it that it should employ the applicant temporarily in Grade A 5.

Upon receipt of this decision on 10 April 1969, the applicant decided to appeal to the Court. In his application, registered at the Court on 5 June 1969, he claims that:

It is now my task to subject these issues to a legal assessment.

1 — Questions Of admissibility

As regards admissibility of the application, the Commission has expressly stated that it has no objections. This does not however absolve the Court from raising any relevant issues of its own motion where the facts of the case warrant this. These might in fact arise in the present case as to the dates of the relevant documents. As I have just demonstrated, the applicant is above all concerned with the effect in point of time of the decision promoting him which was adopted on 6 April 1966 and was notified to him on 1 July 1966. He did not immediately appeal against the decision but at first contented himself with making an appeal through official channels on 3 August 1966 (within the time-limit for making an appeal) under Article 90 of the Staff Regulations. No criticism can be levelled against him on this score, for after all the Court has repeatedly stated that it is desirable that administrative measures under the Staff Regulations be contested in the first place by way of an appeal through official channels rather than by way of a direct application to the Court. However no decision having been made within a period of two months from the receipt of the complaint, the normal continuation of the proceedings ought to have been by an appeal to the Court within a further two months against the implied decision rejecting the application. The applicant did not however proceed in this way; instead he did not appeal to the Court, against the express decision of 14 March 1969 rejecting his application until 5 June 1969 but this was in time bearing in mind the date on which the appeal was lodged. One may well doubt the admissibility of this procedure for, basically, the express decision rejecting the application which must be deemed to have been made by implication two months after the receipt of the applicant's complaint. There can be no doubt however, that confirmatory measures cannot revive a right of appeal once it has become barred. Yet, I would hesitate, as the Commission has done, to suggest this answer to the question of admissibility. For militating against this being right is the fact that on receipt of the applicant's complaint the Commission in its acknowledgement of receipt of 24 August 1966 empathically pointed to the necessity of detailed investigations and expressly assured the applicant of a reply as soon as a definite conclusion had been reached. In the light of this situation one assumes that after the expiry of two months from the receipt of his complaint the examination of the applicant's case had not yet been concluded and that before the express decision taken after the examination had been concluded cannot be merely a confirmation of an earlier implied decision rejecting the application. In particular one has to concede that in situations such as this, having regard to the notification of an express decision, it cannot be expected of the complainant that in order to avoid being out of time he should involve the Commission in proceedings even before the decision announced had been made. In this respect the present proceedings remind me in many respects of those in Case 4/67 [1967] E.C.R. 376-377, though with this difference that in that case the High Authority opposed the relevant submission on the part of the applicant. Despite some hesitation, I therefore think that the admissibility of the appeal should not be denied and that in particular an examination of the application which relates to the effects of the decision on promotion should not be precluded.

In my view it is obvious that similar considerations also apply to an application which relates to a decision under Article 7 of the Staff Regulations and the admissibility of which surprisingly was doubted by the Commission in its rejoinder. In this respect just a few words will suffice. On the one hand there is no doubt that the first time an application based on Article 7 of the Staff Regulations was made by the applicant was by his complaint, made more than two years after the occurrence of the event which in his view justified this step. On the other hand one can argue that there never has been a decision in relation to this matter capable of being contested and that furthermore Article 7 of the Staff Regulations does not lay down any time-limits. It would therefore appear that in relation to this part of the problem also no difficulties arise on admissibility.

Thus nothing stands in the way of a comprehensive examination of the main issue.

2 — On the substance

Looking at the substance we are in the main concerned with two problems. The first is whether the Commission had correctly fixed the date for the coming into force of the decision to promote or whether—as the applicant submits—it was to make the promotion retroactive to 1 November 1964, or at any rate to 1 April 1965. There is the further question whether the applicant is entitled to a decision under Article 7 of the Staff Regulations.

3 — Summary

This really completes my examination of the legal issues. There were no other claims, for example for damages. Beyond this, one can say that also as regards a grant of ex officio compensation such as was made in another case, there are no sufficient indications in the present case such as administrative errors on the part of the applicant's superiors. This conclusion may be regrettable, having regard to the applicant's undoubted capabilities, to the fact that for a considerable period before the coming into force of the decision to promote him he had, in all probability, already been performing the duties connected with the higher post and bearing in mind the fact that the promotion procedure has been rather long drawn out. However the Court is left with no alternative but to reject the appeal.

As regards costs one might having regard to the complexity of the situation at any rate consider that there were exceptional circumstances within the meaning of Article 69 (3) of the Rules of Procedure. Thus it would be possible to order the Commission, notwithstanding its having succeeded, to bear at least part of the applicant's costs. Since this appears to be the appropriate course in the circumstances I hereby formally suggest that it be adopted.

1 Translated from the German.