OPINION OF MR GAND — JOINED CASES 59 AND 71/69 BREMBATI v COMMISSION

Mr President,

Members of the Court,

The applications brought by Mr Brembati, an official of the Commission of the European Communities, against the decisions determining his step and seniority in step will lead the Court to decide on the meaning and scope of the rather complex provisions of Article 46 of the Staff Regulations concerning the classification of servants who have been promoted and the determination of the salary to which they are entitled.

1. In the first decision of the Commission dated 24 January 1969 the applicant, who was at that time classified in Grade A5, Step 8 (the last step in the grade), was promoted as from 1 October 1968 to Grade A4, Step 4, without any change in his appointment, with seniority in that step as from 1 November 1966, that is, twenty-three months. A letter from the Director-General for Personnel and Administration informed him that as the basic salary in his new grade (BF 40800) was BF 100 less than that received in Grade A5, for the month of October 1968 he would receive the latter salary in accordance with the second paragraph of Article 46. On 1 November, the date on which he had been at Step 4 for two years, he automatically advanced to Step 5 of Grade A4 and thus received the salary of BF 40700 carried by that step. Mr Brembati protested first to the Director-General for Personnel and Administration and then, on 11 June 1969, submitted an application to the President of the Commission. He asked to be awarded Step 5 of Grade A4 as from 1 October 1968, the date of his promotion, and to be acknowledged to hold a notional seniority in that step which takes into account the seniority acquired in Step 8 of Grade A5. When he recieved no reply, on 15 October 1969 he lodged Application 59/69 against the implied decision of rejection arising from the failure of the Commission to give a reply. However, by means of a measure having general effect adopted after this application had been lodged, the Commission decided that promotions made within the career bracket during the financial year 1968 would take effect as from 1 July 1968. As a result Mr Brembati was informed that he was classified in Grade A4, Step 4, with seniority in that grade as from 1 July 1968 and in that step as from 1 August 1966. In accordance with the interpretation given to Article 46 of the Staff Regulations by the first decision he was to receive the salary payable in Grade A5 for the month of July 1968 and to advance to Step 5 of Grade A4 as from 1 August 1968. Thus, in formal terms Mr Brembati's request had been partly satisfied. However, the decision taken concerning him was merely the consequence of a general measure which concerned all the promotions made within the career bracket and it was still based on the same interpretation of the Staff Regulations. On 2 December 1969, therefore, Mr Brembati lodged his second application before the Court under number 71/69: in this he sought a declaration that he ought to be classified in Grade A4, Step 5, as from 1 July 1968 and that, in calculating the notional salary to which he was entitled, the Commission had to take into account his seniority acquired in Grade A5, Step 8. In spite of an obvious clerical error in the reply, the applicant continues to put forward these conclusions, as he confirmed at the hearing.

2. The Court must first decide on the objection of inadmissibility raised by the Commission against this second application. According to that institution, the decision to which it refers and which merely alters the date on which the earlier decision took effect is not independent of that same earlier decision. It confirms the decision in part and, to the extent to which it makes no changes in the objective legal position defined by the measure confirmed, it cannot be validly contested on the basis of submissions which only refer to factors already contained in the earlier decision. Mr Brembati gives evidence of no interest in support of his second application which is different from that in the first, and for this reason Application 71/69 is inadmissible.

3. I now come to the substance of the application.

4. Let me say at once that it is quite clear to me that, as the Commission maintains, once the final step of a grade is reached no further notional steps exist.

5. There remains the second point: the interpretation of the final sentence of the second paragraph according to which An official appointed to a higher grade shall in no case receive a basic salary lower than that which he would have received in his former grade.

6. I have finally to reply to two arguments, one legal and the other factual, put forward by the applicant.

I am therefore of the opinion that:

1 Translated from the French.